Administrative Conference of the United States

EVALUATING SUBJECTIVE SYMPTOMS IN DISABILITY CLAIMS

Final Report: March 12, 2015

DISCLAIMER: This report was prepared by the Office of the Chairman of the Administrative
Conference of the United States. The views expressed do not necessarily reflect those of the
Conference’s Council, members, or committees.

CONTRIBUTORS
STEPHANIE J. TATHAM, ATTORNEY ADVISOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

MATTHEW LEE WIENER, EXECUTIVE DIRECTOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Special thanks to Tony Sterling and James Mackey (Conference staff), as well as Connie
Vogelmann and Seth Nadler (Attorney-Advisors), for their assistance with this project.

I.
II.

III.

IV.

V.

VI.

VII.

INTRODUCTION

1

Disabling Impairments and Pain

3

EVOLUTION IN LEGAL STANDARDS FOR THE EVALUATION OF SUBJECTIVE SYMPTOMS
IN SOCIAL SECURITY DISABILITY PROCEEDINGS
6
A. Early controversy surrounding subjective symptom evaluation
B. CDRs, class-action litigation, and a statutory standard for symptom evaluation
C. The Commission on the Evaluation of Pain and Institute of Medicine studies
D. Settling non-acquiescence on the evaluation of subjective symptoms
E. Nationwide standards for the evaluation of subjective symptoms

6
7
9
10
11

SYMPTOM EVALUATION IN THE MODERN CONTEXT

12

A. Legal standards for the evaluation of subjective symptoms
B. Process unification rulings relating to subjective symptom evaluation
C. Policies relating to development of the administrative record

13
15
17

SSA’S PRESENT ADJUDICATORY PRACTICES

18

A. Initial and reconsideration levels
B. ODAR hearing office and Appeals Council levels

18
27

JUDICIAL REVIEW AND REMANDS OF SUBJECTIVE SYMPTOM EVALUATIONS

32

A. Judicial review standards
B. Federal case law overview
C. Appellate review
D. District court review
E. Case law conclusions

33
34
35
39
44

EXTERNAL PERSPECTIVES ON SSA’S EVALUATION OF CLAIMANTS’ SYMPTOMS

45

A. Academic literature
B. Congressional and oversight authorities
C. Stakeholder perspectives

45
46
47

RECOMMENDATIONS

50

A. Statutory and regulatory revisions
B. Policy recommendations

50
52

VIII. APPENDICES
A. Changes to SSA’s Subjective Symptom Regulations Since 1991
B. Additional Policies Implicating Subjective Symptom Evaluation
C. The Electronic Claims Analysis Tool
D. Summary of Request for Program Consultation Files Discussing Subjective Symptom
Evaluation
E. ODAR Data on Subjective Symptom-Related Remands
F. Appellate Case Law Citations
G. Stakeholder Questionnaire Responses

I.

INTRODUCTION

Approximately 100 million U.S. adults suffer from chronic pain, and its prevalence is on
the rise.1 Chronic pain costs the U.S. economy and American workers more than $540 billion each
year, including more than $261 billion in annual incremental health care costs2 and $297-336
billion per year in lost productivity costs.3 According to the 2009 National Health Interview
Survey, which asked Americans about the health problems they experience, pain (principally knee
and back pain) is the most commonly reported cause of limitations in daily activities.4 One in
eight respondents to the American Productivity Audit telephone survey said that pain reduced their
productivity.5 Respondents to the American Productivity Audit survey who had severe pain
missed an average of five more days of work per year than those who were pain free. 6 For some
individuals, chronic pain may be so severe that they cannot work at all.
The Social Security Administration (SSA) administers the Social Security Disability
Insurance (SSDI) and the Supplemental Security Income (SSI) programs, which were created by
Congress to insure and aid individuals who are unable to work because they are disabled.7 Under
the Social Security Act, an individual is disabled when his or her mental or physical medical
impairments are so severe as to limit his or her ability to engage in substantial gainful activity in
the national economy.8 In fiscal year 2004 and in every fiscal year (FY) thereafter, more than 2.5
million Americans applied for disability benefits. The percentage of the population aged 18-64
receiving disability benefits has increased steadily since FY 2004, from 5.25 percent (5.25%) in
FY 2004 to 6.38 percent (6.38%) in FY 2013. The number of Americans receiving disability
benefits grew from 9.75 million to 12.71 million beneficiaries over the same period.9
SSA and state agency disability program administrators decide individual cases through a
legally prescribed process of adjudication. The process begins when a claimant files a disability
benefits application, either in-person at a SSA field office or online. Most cases are then sent to a
federally funded state Disability Determination Service (DDS), which makes an initial disability
determination based on the evidentiary record. In most states, a team of state agency officials
consisting of a state disability examiner and a state agency medical and/or psychological consultant
makes the initial determination of eligibility on behalf of SSA. In some states, known as Prototype
or Single Decision Maker (SDM) States, the disability determination in many cases is made by a
state disability examiner without medical or psychological consultant signoff. 10 Except in
Prototype States, where there is no reconsideration step of the administrative review process, a
claimant who is denied benefits may request reconsideration of this decision by a different state
agency reviewer.11 If benefits are again denied at the reconsideration level, or if they are denied
at the initial level in Prototype States, the claimant may file an appeal and request a hearing with
SSA’s Office of Disability Adjudication and Review (ODAR).
Administrative appeals at the ODAR hearing office level are heard by SSA’s
Administrative law judges (ALJs) and frequently offer claimants a first opportunity for an inperson (or more recently video) hearing of their claim. If claimants are denied benefits by an ALJ,
a final administrative appeal may be made to SSA’s Appeals Council. Denial or dismissal of a
claim at this level, which is ordinarily made on the administrative record, is the final step in the
administrative process. A claimant may then seek judicial review in a U.S. district court, although
Appeals Council dismissals are not appealable in most circuits.12

1

SSA’s adjudicators at all levels of agency review follow a five step sequential process in
evaluating adult disability claims.13 At step one the adjudicator considers a claimant’s work
activity and earnings. If a claimant is working and has earnings at levels of substantial gainful
activity (SGA), then he or she is found not disabled. At step two the adjudicator considers whether
the claimant has a medically determinable impairment (or combination of impairments) that is
severe and that is expected to last at least twelve continuous months or result in death. If the
impairment meets these requirements, SSA at step three determines whether the impairment meets
or equals one of the listed impairments it considers to be disabling. If the listing is met or equaled,
then the claimant is found to be disabled. If not, then the claimant’s residual functional capacity
(RFC) is assessed. The RFC is a “function-by-function assessment of an individual’s maximum
ability to do sustained work-related physical and mental activities on a regular and continuing
basis (8 hours a day, for 5 days a week) despite the limitations and restrictions resulting from his
or her medically determinable impairments.”14 At step four, the adjudicator compares the RFC
and past relevant work to see if the claimant retains the ability to perform past relevant work. If
not, then at step five SSA considers whether the claimant could make an adjustment to any other
work that exists in significant numbers in the national economy.
At all levels of review, after the threshold showing that a claimant is not presently working
at levels of SGA, the adjudicator looks to a claimant’s physical and mental impairments. Both
medical evidence of an impairment and the claimant’s descriptions of his or her subjective
experience of symptoms may be considered at various steps of the disability determination
process.15 Objective medical evidence from an acceptable medical source is required to establish
the existence of an impairment; a claimant’s statements about his or her symptoms alone are not
sufficient to establish the existence of an impairment.16 Nonetheless, the subjective experience of
symptoms of a mental or physical impairment—especially pain—and the functional effects of
those symptoms are, for millions of Americans, integral to claims for government assistance
because of disability. Pain and certain other symptoms introduce subjectivity into a system tasked
with making objective judgments consistently.
SSA commissioned the Office of the Chairman of the Administrative Conference of the
United States to conduct an independent study of subjective symptom evaluation at the initial,
reconsideration, and hearing office adjudicative levels. The Office of the Chairman was also asked
to review appropriate federal court case law involving hearing-level adjudicator evaluations of
claimants’ subjective symptoms and credibility. Data provided by SSA indicate that improper
credibility evaluation at the hearing office level is a reason for remand in about twenty percent
(20%) of decisions remanded after internal Appeals Council or external judicial review. This high
rate of remands evidences not only the frequency with which decisionmakers must evaluate a
claimant’s testimony regarding his or her subjective symptoms, but also the difficulty of this task.

2

Disabling Impairments and Pain

SSA provides disability benefits to individuals suffering from chronic and acute pain.
Though SSA does not specifically track awards by subjective symptom, it is clear that pain and
other subjective symptoms inhere in a variety of disabling impairments. SSA’s disability
regulations identify pain as a symptom for twenty different impairments in its Listing of
Impairments, Part A, which define medical criteria for evaluating disability claims for adults and,
where appropriate, children.17 Pain is also identified as a symptom in five additional impairments
uniquely affecting children, identified in Part B of the Listing of Impairments.18
Disability based on the Listing of Impairments is established when a claimant meets the
medical criteria for a specified impairment; otherwise the adjudicator must evaluate whether the
claimant’s disabling impairment (or impairments) is medically equivalent to the criteria in a listing
or a related listing. Pain is implicated in seven of the fifteen body system listings. 19 Generally,
the intensity of pain need not be evaluated in identifying whether an impairment meets listing
criteria so long as it is present in combination with other criteria.20
Pain is a criterion for seven musculoskeletal and three cardiovascular system impairments,
as well as in identifying impairments in these body systems more generally. 21 In the
musculoskeletal system, pain plays an important role in assessing loss of function. Functional loss
is defined in the listings as the inability to ambulate effectively on a sustained basis for any reason,
including pain associated with the underlying musculoskeletal impairment, or the inability to
perform fine and gross movements effectively on a sustained basis for any reason, including pain
associated with the underlying musculoskeletal impairment.22 In the cardiovascular system, pain
is one of the four consequences of heart disease that may indicate a cardiovascular impairment. 23
Using data provided by SSA, Administrative Conference staff examined dispositions at the
initial, reconsideration, and hearing office level for impairments in which pain is identified in the
medical listings as a diagnostic criterion (“pain criterion impairments”).24 This data, summarized
below, provides a crude estimate of the number of cases in which pain, and in many cases
subjective symptom evaluation, are likely to be important.25
The results are striking: pain criterion impairments are the primary impairment for more
than one in five dispositions at the initial level, nearly one in three dispositions at the
reconsideration level, and more than one in three dispositions at the hearing office level.

FY 2009 – FY 2013 Totals
Adjudicative Level

Pain Criterion Impairments

All Dispositions

Percentage

Initial

4,415,326

19,633,070

22.49%

Reconsideration

1,546,393

5,113,733

30.24%

Hearing Office

1,473,585

3,806,085

38.72%

3

This report reviews and analyzes SSA’s laws, regulations, policies, and practices
establishing how its adjudicators, at all levels, are to evaluate the intensity and persistence of a
claimant’s self-reported subjective symptoms, such as pain, including how SSA’s adjudicators
determine the extent to which a claimant’s symptoms limit his or her capacity for work, or in the
case of a child, his or her limitations on functioning, under SSA’s sub-regulatory policy, SSR 967p Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an
Individual's Statements (SSR 96-7p).26
Part II examines the historical evolution in legal standards for the evaluation of subjective
symptoms in social security disability proceedings. As this part demonstrates, controversy over
how subjective symptoms are to be considered during the adjudicatory process dates to the 1960s.
SSA’s legal approach, as established by its regulations and relevant policy guidance documents
(i.e., superseded Social Security Rulings 82-58 and 88-13, as well as 90-1p (which was applicable
in the U.S Court of Appeals for the Fourth Circuit only)), evolved in response to judicial feedback
and directives issued in litigation over the agency’s policies for subjective symptom evaluation.
This history of conflict in the courts has been occasionally punctuated by congressional
interventions, first, to specify that medically acceptable clinical or laboratory findings are
necessary to establish a disabling medical impairment (1968), and second, to reiterate that an
individual’s subjective symptoms alone are not conclusive evidence of disability under the Social
Security Act (1984).
As set forth in Part II, Subpart E, SSA undertook a major revision of its regulations in
1991 to incorporate the 1984 statutory standard for evaluating subjective symptoms and to codify
its prior policy rulings and other agency policies. Revisions to the agency’s regulations since 1991
have been of a primarily ministerial nature. More substantive changes to its policy rulings were
driven largely by internal agency research and initiatives, specifically the Process Unification
initiative of the late 1990s, but did not deviate from the equilibrium the agency finally established
with the courts. Despite a long history of class-action litigation and some judicial nonacquiescence concerns, it appears that SSA’s present legal approach to subjective symptom
evaluation has been both responsive to and accepted by the federal courts.
Part III examines the agency’s approach to symptom evaluation in the modern context.
Part III, Subpart A details the current legal standards for the evaluation of subjective symptoms
and, in particular, the regulatory two-step analysis, which requires: first, a finding of a medically
determinable impairment capable of producing pain or other symptoms and, second, a
determination regarding the functional limitations and restrictions that those symptoms impose on
a claimant’s ability to work. It also identifies the regulatory factors that SSA’s adjudicators are to
consider in evaluating the limiting effects of a claimant’s medically determinable impairments.
Part III, Subpart B examines SSR 96-7p. As well, it identifies a variety of additional policies
that authorize or prohibit certain tools for record development.
Part IV, Subparts A and B describe a number of present agency practices that impact or
relate to subjective symptom evaluation, including: agency information technologies and
adjudicator use of decision-writing tools, agency quality or internal reviews of cases involving
subjective symptom evaluation as well as related dispute resolution mechanisms, and internal
treatment of bias complaints against ALJs. These practices demonstrate the agency’s commitment
to quality decision-making and nationally uniform program administration at all levels of
adjudicative review.
4

Part IV, Subpart B concludes by examining ODAR’s data-driven findings on internal and
judicial remands of adjudicator decisions due to problems with subjective symptom evaluation.
ODAR’s data show that in recent years the two most common reasons for remand from the Appeals
Council and federal district courts have been that the adjudicator “Failed to Discuss Appropriate
Credibility Factors” required by the regulations and/or “Other Issue.” Remand rates for failure to
discuss the appropriate factors are similar at the Appeals Council and district court levels.
Remands occurred in eighteen to twenty-one percent (21%) of cases decided at these levels.
“Other Issue[s]” are more commonly identified in judicial remands (9% of cases) than in internal
agency review (3-5% of cases). These high remand rates stand in stark contrast to seeming judicial
acceptance of the agency’s regulations and policy rulings.
Part V offers an in-depth look at judicial review and remands of subjective symptom
evaluations at the hearing office level. This part is supported by an independent examination of
both appellate (Subpart C) and district court (Subpart D) opinions citing SSR 96-7p between
2009 and 2013. Conference staff identified five common bases for remand in cases involving
subjective symptom evaluations:
• Problems in considering limitations in a claimant’s daily activities imposed by
symptoms, and in comparing these activities to those needed to sustain substantial gainful
activity.
• Improper consideration of the absence of treatment, where treatment was unavailable,
unadvisable, or occasionally even pursued, and in some cases where further record
development was necessary.
• Reliance on conclusory or template language rather than specific analysis as required by
SSR 96-7p.
• Requiring objective medical evidence of subjective symptoms.
• Unconsidered or inappropriately rejected medical evidence supporting subjective
symptom complaints.
These remands are due to flawed implementation of existing rules and policies, rather than judicial
opposition to the rules and policies. Remand rates due to problematic subjective symptom
evaluation were similar in the courts of appeals (28% of cases citing SSR 96-7p) and in a ten
percent simple random sample of district court cases (26% of sampled cases citing SSR 96-7p).
Part VI presents some perspectives on subjective symptom evaluation from academics,
Congress, and external stakeholders. Academic literature and congressional attention to subjective
symptom evaluation is relatively limited, although several academic articles raise concerns and
examples of bias in credibility evaluations. In response to a questionnaire prepared and distributed
by the Office of the Chairman, stakeholders from disability examiner, ALJ and claimant
representative organizations provided detailed feedback regarding SSA’s existing approach to
symptom evaluation. Taken together, these responses indicate that: the regulations and SSR 967p are generally accepted by stakeholders, opportunities exist to improve their implementation,
claimants have concerns with several of the common bases for remand, and diverse interests
advocate for additional resources and record development (especially of medical evidence), though
supported approaches may vary.

5

Part VII offers the Office of the Chairman’s recommendations. They suggest how SSA
can best articulate the scope of symptom evaluation in its adjudication process and tools, so as to:
improve consistency in disability determinations, reduce complaints of bias and misconduct
against SSA adjudicators, and reduce the frequency of Appeals Council remands as well as judicial
remands on grounds of symptom evaluation. To this end, this part offers suggestions concerning
potential improvements in the language and administration of SSR 96-7p.
II.

EVOLUTION IN LEGAL STANDARDS FOR THE EVALUATION OF SUBJECTIVE SYMPTOMS IN
SOCIAL SECURITY DISABILITY PROCEEDINGS

The definition of disability is a fundamental question for the Social Security program, and
has been the focus of numerous government inquiries dating back to the 1930s.27 At the program’s
inception in the 1950s, Congress made the decision to cover only those disabilities that were
medically determinable.28 A study on Disability and Pain by the National Academy of Sciences’
Institute of Medicine summarized the definitional concern as follows:
The notion that all impairments should be verifiable by objective evidence is administratively
necessary for an entitlement program. Yet this notion is fundamentally at odds with a realistic
understanding of how disease and injury operate to incapacitate people. Except for a very few
conditions, such as the loss of a limb, blindness, deafness, paralysis, or coma, most diseases and
injuries do not prevent people from working by mechanical failure. Rather, people are incapacitated
by a variety of unbearable sensations when they try to work…. Thus, pain is a major problem for
the disability program because it does not fit the medical model of impairment on which the program
rests.29

This “problem” began manifesting in the federal courts in the early 1960s. In the words of one
commentator, “[t]he history of the law in this area may be described as struggle over the need for
objective findings.”30
A.

Early controversy surrounding subjective symptom evaluation

From the beginning, SSA’s subjective symptom evaluation process and requirements were
a basis for remand in courts across the country. In two of the most notable early appellate cases—
the 1963 Page v. Celebrezze and 1964 Ber v. Celebrezze cases in the Second and Fifth Circuits—
SSA decisions to deny disability benefits were overturned in part because of the adjudicators’
failure to adequately consider subjective complaints of severe pain that were not fully supported
by objective clinical and laboratory findings.31 By the 1970s, the Second Circuit had firmly
established that “subjective pain may serve as the basis for establishing disability, even if such
pain is unaccompanied by positive clinical findings or other ‘objective’ medical evidence,” and
the Fifth, Sixth, Tenth, and Eleventh Circuits had issued similar holdings. 32 In kindred cases, the
Third and Seventh Circuits had ruled that medical opinion evidence could not be rejected “simply
because it is based on a claimant’s symptomology….”33 Various circuits took the position that “the
Social Security Act is a remedial statute, to be broadly construed and liberally applied.”34
Some of these early cases relied on the Social Security Act’s lack of a definition of
medically determinable impairment in holding that subjective symptoms could establish
disability.35 However, Congress amended the Social Security Act in 1968 to require objective
clinical or laboratory findings to establish a medically determinable impairment.36 Subsequent
judicial cases accounted for this change in law and focused on whether clinical findings and

6

objective medical evidence were needed to establish the extent of subjective symptoms. 37 Several
courts of appeals held that they were not and remanded SSA decisions to the contrary, though not
all circuits adopted the same position, and, at times, inconsistent rulings were made even within
the same circuit.38
Likely as a result of this non-uniformity, SSA did not attempt to adopt wholesale the varied
judicial directives on subjective symptoms in subsequent promulgations of agency policy and
guidance.39 Its 1980 regulations on symptom evaluation stated: “We will never find that you are
disabled based on your symptoms, including pain, unless medical signs or findings show that there
is a medical condition that could be reasonably expected to produce those symptoms.”40 Similarly,
in 1982, SSA adopted internal policy guidance (SSR 82-58) stating that “there must be an objective
basis to support the overall evaluation of impairment severity. It is not sufficient to merely
establish a diagnosis or a source for the symptom.”41 SSA’s Program Operations Manual System
(POMS) directive 401.570, which was cross-referenced in SSR 82-58 and provided to the agency’s
adjudicators, required objective medical proof of the severity of alleged pain.42
B.

CDRs, class-action litigation, and a statutory standard for symptom evaluation

SSA implemented a new program of Continuing Disability Reviews (CDRs) from 1980 to
1981, as required by the Social Security Disability Amendments of 1980, to determine whether
program beneficiaries were still eligible for benefits.43 While this review process is now a wellestablished and generally accepted part of the disability benefits program, initial implementation
was problematic. Class-action litigation ensued as disqualified claimants sought reinstatement of
their benefits. According to the 1987 Institute of Medicine Study Pain and Disability, there was
a perception that claimants with subjective symptom complaints were disproportionately
represented among those disqualified in initial reviews.44 Litigants attacked SSA’s standard for
evaluating subjective complaints and the implementation of SSR 82-58.
In 1984, the SSA settled a class-action lawsuit, Polaski v. Heckler, in the Eighth Circuit,
by formalizing a standard for the evaluation of pain as a disability. 45 SSA conceded that its
adjudicators might have misinterpreted its guidance in SSR 82-58 on pain, in violation of Eighth
Circuit precedent, “to allow allegations of pain to be disregarded solely because the allegations are
not fully corroborated by objective medical findings typically associated with pain.”46 The agency
agreed to transmit the following standard to its adjudicators:47
While the claimant has the burden of proving that the disability results from a medically
determinable physical or mental impairment, direct medical evidence of the cause and effect
relationship between the impairment and the degree of claimant's subjective complaints need not be
produced. The adjudicator may not disregard a claimant's subjective complaints solely because the
objective medical evidence does not fully support them.
The absence of an objective medical basis which supports the degree of severity of
subjective complaints alleged is just one factor to be considered in evaluating the credibility of the
testimony and complaints. The adjudicator must give full consideration to all of the evidence
presented relating to subjective complaints, including the claimant's prior work record, and
observations by third parties and treating and examining physicians relating to such matters as:
1. the claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.

7

The adjudicator is not free to accept or reject the claimant's subjective complaints solely
on the basis of personal observations. Subjective complaints may be discounted if there are
inconsistencies in the evidence as a whole.48

Although this standard was applicable only in the Eighth Circuit, it was transmitted to all agency
adjudicators “because Polaski class members who now reside in states outside the Eighth Circuit
must have their claims processed in accordance with the requirements of the court orders,
regardless of their current state of residence.”49
SSA also faced extended class-action litigation in the Fourth Circuit arising from its
policies and practices in evaluating complaints of pain in disability claims. 50 In a 1986 decision,
Hyatt v. Heckler (Hyatt II), the Fourth Circuit equitably tolled administrative exhaustion deadlines
to permit North Carolina claimants who were denied disability solely on the basis of SSR 82-58’s
application by adjudicators to challenge that decision in the class action litigation. 51 In doing so,
the court relied on the Supreme Court’s finding in Bowen v. City of New York that SSA’s
unpublicized non-acquiescence policy prevented claimants from learning the facts necessary to
pursue systematic procedural irregularities in a timely fashion (in Hyatt II the alleged irregularity
was not following the law of the circuit with respect to pain).52 Similar relief was granted by the
U.S. District Court for the Western District of Tennessee in 1986 to Tennessee claimants who were
denied disability benefits or whose benefits were terminated because SSA’s internal agency
guidance required objective proof of the severity of alleged pain, in violation of the law of the
Sixth Circuit.53
In response to litigation, and to varying standards for the treatment of subjective symptoms
and pain in the courts of appeals, Congress adopted an interim standard for the evaluation of
subjective symptoms in the Social Security Disability Benefit Reform Act of 1984, with an
expiration date of December 31, 1986.54 Under the new law:
An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of
disability as defined in this section; there must be medical signs and findings, established by
medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a
medical impairment that results from anatomical, physiological, or psychological abnormalities
which could reasonably be expected to produce the pain or other symptoms alleged and which, when
considered with all evidence required to be furnished under this paragraph (including statements of
the individual or his physician as to the intensity and persistence of such pain or other symptoms
which may reasonably be accepted as consistent with the medical signs and findings), would lead
to a conclusion that the individual is under a disability. Objective medical evidence of pain or other
symptoms established by medically acceptable clinical or laboratory techniques (for example,
deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the
individual is under a disability.

In adopting the statutory standard, Congress overrode a rule that was still in effect in several
circuits—that testimony regarding subjective symptoms alone could form the basis of a disability
under the Social Security Act.55 Congress also created a Commission on the Evaluation of Pain
and asked it to study how SSA evaluated pain as well as asked to consider the appropriateness of
the new statutory standard.
Courts generally gave effect to this new statutory language, even overturning their
inconsistent prior precedent.56 For example, in 1986, both the Hyatt and the Samuels courts
acknowledged that class-action claims would be reconsidered in light of the Disability Benefit
Reform Act of 1984 standard for the evaluation of pain.57 Not long after these opinions were
issued, however, the statutory standard for subjective symptom evaluation in the Social Security
Disability Benefit Reform Act of 1984 quietly expired.58
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C.

The Commission on the Evaluation of Pain and Institute of Medicine studies

In 1986, the Commission on the Evaluation of Pain released its highly anticipated report,
which was summarized in the Social Security Bulletin as follows:
The Commission clearly recognized that SSA does have a problem in evaluating disability claims
where disability is alleged due primarily to pain, that this problem is related to the lack of any
objective tool to measure an individual’s pain, and that, although this problem was the reason for
the Commission’s existence, it was highly unlikely the Commission would be able to satisfactorily
resolve all of these questions. 59

The Commission’s major findings were that: the current law handles acute pain relatively well;
administrative tools to clinically assess or measure pain could produce only relative results;
chronic pain and chronic pain syndrome are not psychogenic pain disorders and lack objective
laboratory and clinical evidence of physical impairment that could reasonably cause the reported
pain; there is insufficient data on the number of individuals who demonstrate chronic illness
behavior because of pain but who are denied benefits for failure to substantiate pain allegations;
and fabrication or exaggeration of symptoms (malingering) is not a significant problem nor one
that would be exacerbated by increased attention to subjective evidence in the evaluation of the
existence and nature of pain.60
The Commission made a number of recommendations specific to pain-related claims, such
as encouraging the use of trained pain specialists, where possible, in the examination and
evaluation of such claims. It considered but ultimately did not make a recommendation for an
impairment due primarily to pain, though it did recommend that SSA conduct an experiment or
experiments to evaluate whether to create such a listing category. It recommended that SSA
improve its regulations defining RFC by requiring explicit consideration of potential pain-based
restrictions on basic work activities. It also urged SSA to incorporate pain more fully into its
analysis of nonexertional employment-related limitations. The Commission recognized the
administrative need for a statutory standard to ensure a uniform policy, and recommended a
temporary extension of the 1984 statutory standard for the evaluation of pain. It also urged further
study to ensure that any future change in the statute would be informed by additional data and
would properly and clearly define pain (and, in particular, pain not clearly attributable to
objectively determinable physical or mental causes). To that end, in 1985, it contracted with the
National Academies’ Institute of Medicine to continue research on these issues.
The Institute of Medicine corollary study, entitled Pain and Disability, was released in
1987. The study did not recommend (or even consider recommending) changes in the legal
definition of disability under which SSA operated.61 Consistent with prevailing judicial precedent,
the Institute of Medicine study found that “[s]ignificant pain, even in the absence of clinical
findings to account for it, should trigger a functional assessment of the capacity for work.” 62 It
expressed concern that “a pain claimant without clinical findings to account for the symptom
would be denied benefits” at step two of the sequential evaluation process, prior to an assessment
by the adjudicator of how that pain affected the individual’s RFC.63 The Institute of Medicine
recommended that “a primary complaint of pain” should allow an evaluation of disability,
comparable to the SSA’s approach to mental illness in its recently revised mental illness listings.64
It found:
Disability benefits have not been awarded on the basis of self-reported pain uncorroborated by
objective findings, nor does the committee believe they should be. However, the kinds of acceptable
evaluation and corroboration should not be limited to medical evidence of an underlying disease
process. With or without such findings, consideration should also be given to serious functional

9

limitations and serious problems on measures of integrated behavior. This means not only assessing
physical abilities such as sitting, standing, lifting, and walking, but also examining how the
limitations imposed by pain affect aspects of the individual's daily life: sleeping, eating, self care,
interpersonal relationships, the ability to concentrate, and work activities. 65

This suggestion was not implemented in SSA’s ensuing regulations and operating policies, which
continue to require objective medical evidence of an underlying medical impairment prior to
assessing the impact of pain on a claimant’s functional limitations.
D.

Settling non-acquiescence on the evaluation of subjective symptoms

SSA responded to these legal and policy developments by updating SSR 82-58 with a
superseding Program Policy Statement, SSR 88-13, Titles II and XVI: Evaluation of Pain and
Other Symptoms.66 SSR 88-13 required all of the agency’s adjudicators to develop the record
regarding subjective complaints of pain to permit reasonable inferences as to any limitations on
the claimant’s ability to do basic work activities, “consistent with court decisions which require
that statements of the claimant or his/her physician as to the intensity and persistence of pain or
other symptoms which may reasonably be accepted as consistent with the medical signs and
laboratory findings are to be included in the evidence to be considered in making a disability
determination.”67 It adopted some of the language of the standard for subjective symptom
evaluation in the Social Security Disability Benefit Reform Act of 1984, as well as gave nationwide
applicability to the factors SSA had agreed in Polaski to require some of its adjudicators to consider
as evidence of pain or other symptoms.68 Consistent with precedent from the First Circuit and
internal SSA policy guidance, SSR 88-13 also added treatment (other than medication) for relief
of pain to the list of factors an adjudicator should consider in making a benefit determination.69
SSR 88-13 was specifically upheld by the Seventh and Ninth Circuits.70 Notably, the Seventh
Circuit was the only circuit that then still required some objective medical evidence of the extent
of subjective symptoms.71 It is striking that SSR 88-13 was upheld in two circuit courts with
conflicting positions on whether objective medical evidence of the extent of subjective symptoms
was required to establish disability.
However, SSR 88-13 was not accepted in the Western District of North Carolina, which
continued to hear challenges to SSA’s adjudications in the Hyatt class-action litigation and which,
in 1989, ordered SSA to distribute a new SSR on the pain standard for adjudicators in North
Carolina.72 This judicial directive made it clear that “subjective evidence of pain, its intensity or
its degree, is an adequate basis for a finding of disability, once medically acceptable objective
evidence has established an underlying impairment capable of causing pain.”73 In Hyatt III, the
Fourth Circuit agreed with the substance of the District Court’s findings on SSR 88-13, but
permitted SSA to retain SSR 88-13 with an amendment to clearly indicate the change in policy
from SSR 82-58—that medical findings are not required to corroborate the severity of alleged
pain.74 On August 6, 1990, SSA issued SSR 90-1p, Titles II and XVI: Evaluation of Pain and
Other Symptoms, superseding SSR 88-13 only in states in the Fourth Circuit.75 SSR 90-1p was
identical to SSR 88-13 except for its statement of purpose, which was updated to reflect the change
in policy from SSR 82-58, and effective date. The Hyatt III litigation settled in 1994 with an
agreement by SSA to review 77,000 claims that included allegations of pain and that were denied
before November 1991.76

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In 1992, SSA settled another class action lawsuit, Stieberger v. Sullivan, in the Southern
District of New York.77 The settlement followed a 1990 district court opinion finding that SSA
had “non-acquiesced” with respect to several specific holdings of the Second Circuit.78 They
included the Second Circuit's holdings that “an ALJ may accord his personal observations of the
claimant's physical and mental condition only limited weight in deciding the substantive issues in
the case” and that “the testimony of a claimant with a good work record claiming an inability to
work because of a disability is to be deemed substantially credible.”79 The 1990 opinion noted
that judicial precedent regarding the ALJ’s consideration of his or her own personal observations
and claimant work history had not been incorporated into SSA’s policy during the 1980s, when
the alleged non-acquiescence occurred, as well as that the judicial rulings tended to be more
specific than SSA’s more general policy on credibility.80
Under the Steinberger settlement, SSA agreed to publish a Manual of Second Circuit
Disability Decisions (the Steinberger Manual) and to direct its decisionmakers and reviewers of
its decisions for New York resident claimants to comply with the holdings identified therein. 81
They require SSA’s decisionmakers to: make a specific finding on the credibility of testimony
regarding pain, find that a claimant with a good work record is entitled to substantial credibility,
give limited weight to observations on a claimant’s demeanor, accept that objective findings of
pain itself are not needed, and afford great weight to subjective complaints when they are
accompanied by objective medical findings.82 These holdings are still legally binding in the
Second Circuit.
E.

Nationwide standards for the evaluation of subjective symptoms

On November 13, 1991, SSA issued an extensive revision to its nationwide regulations
concerning the evaluation of subjective complaints, including pain. 83 According to SSA, these
regulations “incorporate[d] the terms of the statutory standard for evaluating pain or other
symptoms contained in section 3 of the Social Security Disability Benefits Reform Act of 1984”
and codified much of the SSA’s earlier Social Security Rulings and program operating instructions
(POMS directives) on the evaluation of pain and other symptoms.84 Appendix A: Changes to
SSA’s Subjective Symptom Regulations documents the regulatory updates adopted in 1991, as
well as the relatively minor revisions to the regulations thereafter.
SSRs 88-13 and 90-1p remained in effect until 1995, when they were superseded by SSR
95-5p, Titles II and XVI, Considering Allegations of Pain and Other Symptoms in Residual
Functional Capacity and Individualized Functional Assessments and Explaining Conclusions
Reached.85 Because much of SSA’s policy on the evaluation of symptoms had been codified in
the 1991 regulatory updates, the SSR was limited to the subject of how adjudicators should
consider allegations of subjective symptoms in assessing a claimant’s RFC. The SSR required
adjudicators to explain their assessment of the functional impact of symptoms. It clarified that the
agency’s policies on subjective symptoms applied not just to pain, but to all symptoms (such as
fatigue, shortness of breath, weakness, or nervousness).86
Amidst these regulatory and policy developments, internal quality review research
identified decisional inconsistency in the evaluation of subjective symptoms among different
levels of adjudicators.87 Variance in procedures and evaluation standards (including standards for
the treatment of pain) at the different levels of review had long been cited as a major reason for

11

this inconsistency, even in a study that controlled for differences in evidence at each level of
review.88 Although judicial remands indicated that subjective symptom findings were negatively
impacting some award determinations, administrative research showed that claimants’ in-person
testimony contributed to favorable benefit decisions at the hearing office adjudicative level.
SSA and U.S. Government Accountability Office reports indicated that ALJs were granting
disability benefits more frequently than state DDS decision-makers in part because “DDS
adjudicators tend to rely on medical evidence such as the results of laboratory tests; ALJs tend to
rely more on symptoms such as pain and fatigue.”89 A 1994 SSA Office of Program and Integrity
Reviews study “identified the credibility of the claimant and the claimant’s allegations about pain
as two of the top five reasons for an ALJ allowance decision.”90 This study found that the
claimant’s credibility was a factor in thirty-four percent (34%) of sampled hearing allowances.91
At the DDS level, however, claimant testimony was found to have minimal or no impact.92 DDS
medical consultants were found to have sometimes “overstated the claimant’s capacity to function
in the workplace.”93 This may be attributable, at least in part, to the fact that ALJ hearings were
often the first opportunity for claimants to have in-person contact with the adjudicators deciding
their claims.94 A 1994 survey of ALJs conducted by the Office of the Inspector General for the
Department of Health and Human Services (which then housed SSA) reported that ninety percent
(90%) believed that a claimant’s presence at a hearing had at least a moderate effect on whether
an award is made, and more than half thought the effect was strong.95 This finding was consistent
with the 1980s research on consistency in decisionmaking, which found that the ALJ award rates
declined by seventeen percent (17%) when records documenting a claimant’s testimony were
removed from the case file.96 (While no recent research on this subject was identified, award rates
continue to be higher at the ALJ level—where the claimant has the opportunity for a face-to-face
hearing—than at the state DDS level.97 It should be noted, however, that personal observations
about a claimant might be recorded at SSA field offices, and available for review by DDS
decisionmakers.98 Further, other factors—such as new evidence—can also influence award rates
at the ALJ level compared to those at the DDS.)
In the early 1990s SSA sought to develop a single presentation of policies for all of its
decisionmakers, with the goal of “achiev[ing] correct, similar results in similar cases at all stages
of the administrative review process.” This resulted in issuance of what are known as the “process
unification” rulings.99 SSA’s present guidance on subjective symptom evaluation, SSR 96-7p,
discussed further below, superseded SSR 95-5p and was adopted together with nine other Social
Security Rulings. Issuance of the rulings was followed by a major agency-wide training effort that
reached more than 15,000 adjudicators and quality reviewers.100 The process unification rulings
remain in effect today.
III.

SYMPTOM EVALUATION IN THE MODERN CONTEXT

SSA’s 1991 regulations and 1996 process unification guidance on the evaluation of
subjective symptoms appear to have been relatively well accepted by the public and the courts.101
The regulations have been cited by numerous courts of appeals—including the Fourth Circuit, the
forum for the Hyatt class-action litigation, and the Eight Circuit, the forum for the Polaski classaction litigation—as consistent with judicial precedent.102 They were upheld in the Seventh Circuit
despite their conflict with that court’s precedent (requiring some objective medical evidence to
support subjective symptom claims) due, the court explained, to their consistency with the
12

approach taken by “every other circuit” and SSA’s prerogative to issue clarifying regulations
“‘[t]idying-up’ a conflict in the circuits.”103
Nonetheless, as set forth below in Section V: Judicial Review and Remands of
Subjective Symptom Evaluations, evaluation of pain and other subjective symptoms has
continued to play an important role in federal judicial disability decisions. Many of these cases
relate to whether SSA’s adjudicators properly implement the regulations and SSR 96-7p.104 For
example, in a recent settlement of class-action litigation in the Eastern District of New York
alleging bias in credibility and disability determinations, SSA agreed to conduct training programs
instructing its ALJs on credibility assessment, record development, and hearing conduct.105
Further judicial attention has been given to chronic pain disorders, as well as somatoform mental
disorders, which are a listed medical impairment that cannot be verified by organic findings or
known physiological mechanisms.106
This section of the report provides an overview of the statutory and regulatory standards
that SSA adjudicators are required to follow in evaluating subjective symptoms. It offers a detailed
summary of SSR 96-7p, the agency’s sub-regulatory guidance on evaluating claimant credibility.
A.

Legal standards for the evaluation of subjective symptoms

Since the expiration of the Disability Benefit Reform Act of 1984, SSA has operated
without a statutory definition of disability that specifically accounts for subjective symptoms, such
as pain. Rather, 42 U.S.C. § 423(d)(5)(a) defines disability by reference to “medical and other
evidence of the existence thereof as the Commissioner of Social Security may require.” 107 A
physical or mental impairment—defined as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques”108—must cause the disability.109
SSA’s regulations set forth the Commissioner’s evidentiary requirements for a showing of
disability. Subjective symptoms are evaluated at various steps in the five-step sequential
evaluation process for determining disability set forth in 20 C.F.R. §§ 404.1520(a)(4) and
416.920(a)(4). Specifically, subjective symptoms are to be considered in evaluating the medical
severity of a claimant’s medically determinable impairment (which must be established at step
two), whether the listing of impairments is met or whether the claimant’s already established
impairment medically equals a listed impairment (step three), and their impact on a claimant’s
RFC and ability to do past relevant work (step four). 110 Exertional and nonexertional limits on
RFC imposed by a claimant’s impairment(s) and symptoms are also considered at step five if the
claimant is unable to do his or her past relevant work.111
20 C.F.R. §§ 404.1520 and 416.929 codify the standards SSA’s adjudicators use to evaluate
symptoms, including pain. As depicted in Appendix A: Changes to SSA’s Subjective Symptom
Regulations since 1991, these regulations have undergone only minor amendments since they
were promulgated in 1991. These regulations establish a two-part test for the evaluation of
subjective symptoms. First, adjudicators must review the evidence for “medical signs and
laboratory findings which show that [a claimant has] a medical impairment which could reasonably
be expected to produce the pain or other systems alleged, and, when considered with all of the
other evidence (including statements about the intensity and persistence of [the claimant’s] pain

13

or other symptoms which may reasonably be accepted as consistent with the medical signs and
laboratory findings), would lead to a conclusion that [the claimant is] disabled.”112 This finding
“does not involve a determination as to the intensity, persistence, or functionally limiting effects”
of symptoms.113 If medical signs and laboratory findings do not establish the existence of any
physical impairment(s) capable of producing the pain or other symptoms, and evidence suggests
the possibility of a medically determinable mental impairment, then SSA adjudicators must
develop evidence regarding this possibility.114
Second, when such a medical impairment is established, the adjudicator must “determine
the extent to which [a claimant’s] alleged functional limitations and restrictions due to pain or
other symptoms can reasonably be accepted as consistent with the medical signs and laboratory
findings and other evidence to decide how [the claimant’s] symptoms affect [his or her] ability to
work.”115 This determination requires an evaluation of the intensity and persistence of related
symptoms, and SSA must attempt to obtain objective medical evidence that would assist in making
“reasonable conclusions” about the effect of those symptoms on a claimant’s ability to work. 116
Consistent with the Hyatt class-action litigation and substantial circuit-level judicial precedent,
statements about subjective symptoms may not be rejected solely because they are not
substantiated by objective medical evidence.117 Under the regulations, nonmedical evidence of
subjective symptoms and their disabling impact will be carefully considered, but must reasonably
be acceptable “as consistent with the objective medical evidence.”118
The regulations include seven factors that adjudicators are to consider as part of the second
step of symptom evaluation (as well as in evaluating the limiting effects of severe impairments
that do not meet the medical listings at step three of the sequential evaluation process).119 It is
worth emphasizing that these regulatory factors are primarily derived from the Polaski litigation.
They were adopted by SSA but were established by federal appeals courts reviewing only civil
action appeals of hearing and Appeals Council level decisions that denied claimants benefits. They
now bind adjudicators at all levels of administrative decisionmaking. As discussed further below,
federal officials have worked to ensure their consistent consideration even during the state agency
initial and reconsideration processes.
Subjective symptoms are to be evaluated based on all evidence presented, including
information about the claimant’s prior work history, statements about symptoms, evidence
submitted by treating or nontreating sources, and observations by SSA employees and “other
persons.”120 The seven regulatory factors SSA’s adjudicators must consider (where applicable)
are:
 The claimant’s daily activities;
 The location, duration, frequency and intensity of the claimant’s pain or other symptoms;
 The type, dosage, and effectiveness, and side effects of any medication the claimant takes
or has taken to alleviate pain or other symptoms;
 Precipitating and aggravating factors;
 Treatment, other than medication, the claimant receives or has received for relief of pain
or other symptoms;
 Any measures the claimant uses or has used to relieve pain or other symptoms; and
 Other factors concerning a claimant’s functional limitations and restrictions due to pain or
other symptoms.121

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Functional limitations imposed by symptoms may be categorized as exertional or non-exertional
and are considered in determining whether the claimant is able to do past relevant work or adjust
to other work that exists in the national economy.122
B.

Process unification rulings relating to subjective symptom evaluation

Three of the process unification rulings deal directly with symptoms: SSR 96-3p, Titles II
and XVI: Considering Allegations of Pain and Other Symptoms in Determining Whether a
Medically Determinable Impairment is Severe; SSR 96-4p, Titles II and XVI: Symptoms, Medically
Determinable Physical and Mental Impairments and Exertional and Nonexertional Limitations;
and SSR 96-7p, Titles II and XVI: Evaluation of Symptoms in Disability Claims, Assessing the
Credibility of an Individual’s Statements. These rulings were published in the Federal Register
and, by regulation, are binding on all SSA components.123 The first of these three SSRs was
published to restate and clarify SSA’s long-standing policies. SSR 96-3p clarifies that an
individual’s symptoms can cause limitations and restrictions in functioning that may require a
finding of a “severe” impairment(s) at step two of the sequential evaluation process, and hence
additional evaluation under the sequential process, if the limitation or restrictive effect on the
individual’s ability to do basic work activities is “more than minimal.”124 SSR 96-4p clarifies that
symptoms may impose limitations or restrictions that are exertional or nonexertional in nature (or
both) and are to be considered during step five of the sequential evaluation process.125
SSR 96-7p, Titles II and XVI: Evaluation of Symptoms in Disability Claims, Assessing the
Credibility of an Individual’s Statements, formally expanded SSA’s nationwide consideration of
symptom evaluation into the realm of the claimant’s credibility. Notably, however, credibility
analysis was a major issue in the 1984 settlement in Polaski, in which SSA agreed that, in the Eight
Circuit, “[t]he absence of an objective medical basis which supports the degree of severity of
subjective complaints alleged is just one factor to be considered in evaluating the credibility of the
testimony and complaints.”126 Circuit-level discussion of Social Security cases had long referred
to SSA decisionmaker evaluations of claimant’s subjective symptoms as “credibility
determinations,” and numerous Social Security decisions from ALJs and the Appeals Council
dating to as early as 1985 denied disability benefits at least in part due to a finding that a claimant’s
pain testimony was “not fully credible.”127 The agency’s practice of assessing the credibility of a
claimant’s statements about his or her subjective symptoms thus appears to substantially pre-date
the SSR. It is possible that the “credibility” terminology came from the federal courts, which
frequently make or review credibility determinations in a variety of contexts, such as when
reviewing immigration asylum credibility determinations.128 In the words of the Eleventh Circuit,
writing in 1982, “findings as to credibility… are necessary and crucial where subjective pain is an
issue.”129
With SSR 96-7p, SSA for the first time required its adjudicators to make an explicit
credibility finding in cases where subjective symptoms are alleged and where an underlying
medical impairment has been found but objective medical evidence does not substantiate the
claimant’s statements about pain or other symptoms.130 The advisability of using “credibility” in
SSR 96-7 to describe the fact-finding exercise used to evaluate symptoms required under 20 C.F.R.
§ 404.1529 and § 416.929—neither of which employ the term—is at least open to question. While
“credibility” will certainly bear the meaning to which it is assigned in SSR 96-7p, it is more
commonly used in litigation (whether before agencies or courts) in a much narrower sense: to
15

characterize the believability, truthfulness, or honesty of a testifying witness.131 That is the sense
(in fact the only sense) in which “credibility” is used in the Federal Rules of Evidence, which allow
a witness’s credibility to be attacked or supported by reference to his “character for
truthfulness.”132 Credibility determinations are often bound up with an assessment of a witness’s
demeanor in an investigatory adversarial setting. That explains why administrative agencies often
adopt rules requiring strong deference to their judges’ credibility findings 133—even though no
deference is required by the Administrative Procedure Act for formal adjudications134—or why a
federal district court’s credibility findings receive special deference on appeal.135
It may be that that SSR 96-7p’s use of “credibility” to describe the fact-finding exercise
required under the above regulations is harmless enough. But there are some contrary indications
that should give SSA pause. As we note below, the focus on “credibility” may misdirect the factual
inquiry required by SSR 96-7p—with consequences both for the quality of ALJ decisionmaking
and remand rates—and unnecessarily invite charges of ALJ bias into a nonadverserial adjudicative
process. As discussed later in the report, SSA’s internal data show that symptom evaluation—and
more specifically credibility determination—continues to be one of the most cited reasons for
remand from federal courts in recent years. Hence, SSR 96-7p is a central focus of this report, and
the guidance is described at a high level of detail below. Additional (non-process unification)
SSR’s implicating subjective symptom evaluation are described in Appendix B: Additional
Policies Implicating Subjective Symptom Evaluation.
Summary of SSR 96-7p, Titles II and XVI: Evaluation of Symptoms in Disability
Claims, Assessing the Credibility of an Individual’s Statements
SSR 96-7p begins by reiterating the two-step process for symptom evaluation contained in
the regulations (20 C.F.R. §§ 404.1529, 416.929). For the first time, it described the regulatory
requirement of determining how symptoms affect a claimant’s capacity to perform basic work
activities as a “requirement for a finding on the credibility of the individual's statements about
symptoms and their effects.”136 It provides that “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.”137 The ruling
defines the “credibility” of a claimant’s statements about pain or other symptoms as “the degree
to which the statements can be believed and accepted as true.” The SSR clarifies that an
adjudicator may accept some, all, or none of a claimant’s statements about his or her subjective
symptoms, but also that a finding that not all of a claimant’s statements are credible is not “in itself
sufficient to establish that the individual is not disabled.”
The SSR directs that credibility findings may not be made on the basis of “intangible or
intuitive notion[s].” Rather, they must contain reasoning, “supported by the evidence in the case
record, and . . . sufficiently specific to make clear to the individual and to any subsequent reviewers
the weight the adjudicator gave to the individual's statements and the reasons for that weight.”
Adjudicators are to evaluate the record, recorded agency observations or the adjudicator’s own
recorded observations of the claimant, and the claimant’s statements about his or her subjective
symptoms to draw appropriate inferences and conclusions about the credibility of the individual’s
statements.

16

SSR 96-7p directs adjudicators to consider the regulatory factors in light of the:
 consistency of the individual’s statements, both internally and with other information in
the case record;
 medical evidence and the claimant’s medical treatment history, including: clinical
observations as to the onset, description, character, effects, and treatment of subjective
symptoms, evidence of other impairments that could account for alleged symptoms, and
medical treatment history that demonstrates persistent efforts by the claimant to obtain
relief of pain or other symptoms;
 information provided by other sources, such as statements by third parties about the factors
listed in the regulations; and
 the adjudicator’s own and recorded agency observations of the claimant, with the caveat
that an adjudicator may not accept or reject an individual’s subjective symptom complaints
solely on the basis of personal observations.
These guidelines elaborate on the regulations, which obligate adjudicators to carefully consider
any information a claimant submits about his or her symptoms (including medical evidence and
observations by SSA employees or other persons).138
Finally, the SSR states that findings by state agency consultants and other program
physicians and psychologists on the credibility of the individual’s statements about limitations or
restrictions due to symptoms are findings of fact that should be weighed under the applicable
regulations and policy rulings governing non-examining sources.
C.

Policies relating to development of the administrative record

Development of the administrative record regarding subjective symptoms can help the
DDS decisionmaker(s) or ODAR adjudicator(s) determine whether a claimant’s subjective
symptoms are disabling. A few SSA policies, contained in POMS or in other official agency
directives, pertaining to record development are worth noting.
Consultative Pain Evaluations—SSA’s adjudicators are permitted to use the treating
source, a pain specialist, a pain center, or a consultative examination panelist who is not a pain
specialist as consultative examination sources in evaluating pain, but only if: a fully favorable
determination is not otherwise possible, an assessment of the existence and extent of any
limitations due to pain is essential to make a determination, and the necessary evidence is not
otherwise available from medical sources of record, the claimant, and others.139 While such
consultations can be beneficial in these circumstances, routine consultative examinations may be
costly or inappropriate, particularly in cases where there are treating sources.
Use of Social Media—SSA prohibits personnel from reviewing a claimant’s social media
accounts to develop the record prior to making a decision on whether to award benefits, despite
feedback from some ALJs that access to social media would be useful in evaluating claimant
credibility.140 In response to congressional inquiries, SSA has expressed concern that permitting
review of social media as part of the disability determination process “could be found to violate a
claimant’s due process right” absent the corresponding ability to corroborate information that may
easily be falsified or presented without context.141 The agency noted, however, that its employees
and Office of Inspector General, as well as law enforcement partners, may review social media
(with subsequent corroboration or refutation) to develop investigations.142
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Tests for Malingering—SSA limits the ability of decisionmakers to order symptom validity
tests (SVTs), such as the Minnesota Multiphasic Personality Inventory-2 or Test of Memory
Malingering, to help determine whether a claimant is malingering. 143 According to a 2012 letter
sent by Linda Dorn, Associate Commissioner to state DDS, “SSA does not support the purchase
of tests for malingering or credibility. While the results of these tests can provide evidence
suggestive of poor effort, or of intentional symptom manipulation, results from such information
are not programmatically useful in resolving the issue of the credibility of an individual’s
statements.”144 Also in 2012, the Chief ALJ issued a memorandum barring ALJs from ordering
SVTs as part of a consultative examination.145 SSA will, however, consider SVT results when
they are a part of the medical evidence of record (i.e., when they are submitted by claimants).146
SSA has distinguished between the use of SVTs by clinicians and by its own adjudicators, which
it says would require development of weighting and training criteria.147
IV.

SSA’S PRESENT ADJUDICATORY PRACTICES

Given the sheer volume of SSDI and SSI claims received each year, a comprehensive
evaluation of SSA’s present adjudicatory practices is impractical. However, several practices,
including electronic disability initiatives, data collection, and internal review processes, are worth
exploring given their direct impact on or relation to subjective symptom evaluation. This section
of the report provides an overview of such practices as they relate to subjective symptom
evaluation at the initial and reconsideration levels. The focus of this examination is on federal
practices and federal program administration, rather than on state actors and the multitude of
individual state business processes. Next, this section describes the agency’s quality review
process. It concludes with an examination of adjudicatory practices at the hearing level as well as
ODAR’s empirical findings regarding judicial remands due to problematic subjective symptom
evaluation by administrative law judges. The discussion was informed by review of nearly 150
quality review partial case files provided by SSA, described in further detail below.
A.

Initial and reconsideration levels

State DDSs are fully funded by the federal government but are operationally independent
in many significant respects, such as selection of personnel.148 The focus of federal involvement,
consistent with federal law and regulations, is on promoting uniform decisionmaking standards
and procedures at all levels of review.
The Social Security Act (the Act) requires State agencies to make disability determinations
in accordance with the Act, as well as with SSA’s regulations or other written guidelines. 149 The
Commissioner is authorized to promulgate regulations specifying performance standards and
administrative requirements and procedures to be followed in performing the disability
determination function “in order to assure effective and uniform administration of the disability
insurance program throughout the United States.”150 The Commissioner is to establish by noticeand-comment regulation “uniform standards which shall be applied at all levels of determination,
review, and adjudication” in determining disability.151
SSA’s regulations, at 20 C.F.R. Part 404, Subpart Q—Determinations of Disability,
generally elucidate the basic responsibility of SSA and state DDS agencies:

18

We [SSA] will work with the State to provide and maintain an effective system for processing claims
of those who apply for and who are receiving benefits under the disability program. We will provide
program standards, leadership, and oversight. We do not intend to become involved in the State's
ongoing management of the program except as is necessary and in accordance with these
regulations. The State will comply with our regulations and other written guidelines.152

Under these rules, DDSs are to certify their disability determinations in individual cases on
federally provided forms, as well as furnish SSA with all evidence it considered in making its
determination.153
Federally prescribed forms and others practices that further the congressional goal of
nationally uniform program administration, particularly with respect to the evaluation of subjective
symptoms, are described below. SSA’s Office of Disability Determinations (overseen by the
Deputy Commissioner of Operations), Office of Disability Policy (overseen by the Deputy
Commissioner of Retirement and Disability Policy), and Office of Disability Systems (overseen
by the Deputy Commissioner of Systems) each play key roles in developing, deploying, and
administering federal mechanisms for oversight of state DDSs. Informational interviews with SSA
officials in these offices provided helpful background for this section of the report, and the authors
are grateful for their time and assistance.
SSA’s electronic disability (eDib) process
Historically, record evidence and forms were stored in paper folders (Modular Disability
Folders), but SSA began a transition to the Electronic Disability (eDib) process in 2004.154 Using
federally funded and developed information technology, state DDSs now use an Electronic Folder
to store all information and evidence for a disability determination and they also use electronic
forms to document disability case issues and actions.155 Where the Electronic Folder is the official
file for Field Offices and state DDSs, the file is fully electronic through any subsequent quality
reviews, as well as at the reconsideration, hearing, appellate and district court levels.156 All states
are now certified to process disability claims in a fully electronic environment.157
The eDib process has several components, such as video and digitally recorded hearings,
and encompasses several distinct information technology systems.158 For example, field office
staff collect information about claimants’ disability and work history in the Electronic Disability
Collect System (EDCS).159 It is worth noting that field office disability interviews may capture
some information about claimant credibility in this system.160 SSA states that “these observations
are very valuable because DDS examiners do not have face-to-face contact with the claimants.”161
An Electronic Folder is opened for a claim after it is established in EDCS162 and includes recorded
field office observations and other case materials from EDCS.163 Information about recorded field
observations may factor into the DDS disability determination; for example, twelve of fifty
Disability Determination Explanations reviewed by ACUS specifically referenced observations
made by field officers.
Federal development and maintenance of the eDib process allows SSA to structure
information capture by state actors. This facilitates data collection for purposes of performance
management, as well as provides infrastructure and evidence for quality review and claimant
appeals. For example, these systems permit SSA to calculate performance indicators such as the
average processing time for initial disability claims, the total processing time for initial disability
claims, the total processing time for disability insurance and SSI claims, and total claims processed
19

for disability insurance and SSI disability.164 These performance and other similar management
information (MI) indicators help SSA to understand state agency operations and to provide
oversight and management of state business processes, consistent with the agency’s statutory and
regulatory responsibilities. MI systems may focus on production goals.165
SSA guides development and collection of DDSs’ administrative records (including
prescribed federal forms) through the eDib process. For example, before an electronically
processed case can be closed, the DDS adjudicator(s) must complete a Form SSA-831 (Disability
Determination and Transmittal), technically considered the disability decision, and submit it to the
Electronic Folder.166 To close out an electronic case, the Disability Examiner must ensure that all
case development and determination documents, including evidence and forms, have been added
to the Electronic Folder.167 DDSs are also required to submit a decision rationale containing a
number of elements defined in POMS DI 26515.001, including an evaluation of the credibility of
the claimant’s statements about his or her symptoms.168 As discussed below, DDS articulation of
the decision rationale is also federally structured through the electronic Claims Analysis Tool
(eCAT) initiative.
SSA’s electronic Claims Analysis Tool
Historically, state disability examiners prepared narrative determination rationale
statements to address each of the elements enumerated in POMS. Increasingly, decision rationales
are now prepared and documented through the eCAT, which offers a template for DDS
decisionmaking. SSA’s eCAT was designed to provide DDS decisionmakers with “guidance and
assistance for consistent, policy-compliant disability determinations” as well as to ensure that there
is a complete claim explanation in one eCAT generated document, known as the Disability
Determination Explanation. SSA’s OIG reports that previously DDS “examiners were not in the
habit of providing the level of detailed documentation that eCAT requires.”169 The Disability
Determination Explanation is used for internal purposes and is not provided to the claimant when
he or she is notified of the agency’s decision, although it may be available to the claimant on appeal
to ODAR. (Hence, ALJ opinions may be the first time that claimants learn how the agency
evaluated their subjective symptoms and that their statements about symptoms were evaluated for
credibility.)
This is not to say that eCAT is merely a decision-writing tool. Rather, eCAT is intended
to aid decisionmaking as it occurs, including through intelligent pathing that recognizes decisional
dependencies and promotes policy compliance by—in the words of SSA’s Chief Information
Officer and Deputy Commissioner of the Office of Systems Bill Zielinski—prompting users to
“consider the appropriate questions based on the unique characteristics of each case.”170 Policy
compliant pathing helps to reduce potential user errors. Of course, the software is not able to
ensure that users answer questions appropriately; even with eCAT there could be a very well
documented incorrect decision.171 DDSs have the burden of understanding and properly applying
the applicable policies.172 Links to relevant regulations and policies within eCAT provide users
with immediate access to the appropriate resources.173
Adjudicator preparation of Disability Determination Explanations using eCAT allows SSA
to gather both structured and unstructured data about decisionmaking. Structured data is captured
in a uniform format that is intended to enable SSA to “collect and analyze consistent data.”174 For

20

example, users might select an option from a list of pre-populated entries or they might select one
or more relevant check boxes corresponding to fixed fields. In eCAT, unstructured data would be
captured where the user enters comments or an explanation into a text box in a free-form narrative
format, perhaps bounded by character limits on text entry. The irregular nature of such entries can
present serious challenges for data analysis.
SSA built eCAT to guide decisionmakers through the sequential process and help reach a
policy compliant outcome, including addressing symptoms and credibility and weighing of
medical opinion evidence. Appendix C: The Electronic Claims Analysis Tool documents the
portions of eCAT most relevant to the evaluation of a claimant’s subjective symptoms. The system
captures both structured and unstructured data about symptom evaluation. For example, in cases
that require a step two analysis of subjective symptoms, eCAT users are asked to select by check
box the regulatory factors that “were the most informative in assessing the credibility of the
individual’s statement.”175 These selections are captured as structured data. Where “Other
factors” has been selected, users are required to provide an explanation in an associated text box.
The explanation is captured as unstructured data.
The accompanying screenshot illustrates the eCAT interface where an evaluation of a
claimant’s subjective symptoms using the regulatory factors is required.176

21

Because of this data capture, eCAT has the potential to provide SSA with a wealth of
information about subjective symptom evaluation at the initial and reconsideration levels. This
could permit the agency to better understand the frequency with which subjective symptoms
contribute to a finding of disability (as compared to the rough estimate above in
Disabling Impairments and Pain), as well as to empirically test the validity of the multi-factor
test for subjective symptom evaluation. As discussed above, federal courts, which review only a
fraction of the agency’s cases, established this test. The agency has previously not had the data
necessary to proactively analyze its applicability at the initial and reconsideration levels, where
the vast majority of claims are processed.
SSA mandated the use of eCAT by all state DDSs by the end of September 2012 for initial
claims, as well as for reconsideration decisions that were initially decided using eCAT.177 In
January 2012, over two-thirds of the agency’s initial and reconsideration claims were processed
using eCAT for electronic case analysis.178 As of June 2014, SSA’s Chief Information Officer
reported that the agency had exceeded its FY 2014 target of processing ninety-five percent (95%)
of eligible initial and reconsideration cases using eCAT to generate the Disability Determination
Explanation (DDE), with an actual use rate for eligible claims of 99.46 percent (99.46%).179 As
the accompanying chart demonstrates, eCAT has been used to document more than ten million
initial and reconsideration level claims since FY 2010.180

According to SSA officials, “FY 2014 was the first complete year that eCAT collected
nationwide data for most initial and reconsideration disability determinations. With broad use,
including both state and federal sites, SSA can analyze and validate the data recorded in eCAT for
quality and consistency. Once this validation is complete, SSA will be in a position to build MI
reports.”181 Only then can management information be used to gauge DDS compliance with the
requirements of the tool (such as providing narrative elaboration on certain fields) or to more
generally inform the agency’s policy choices. Unfortunately, as of early 2015, SSA is not yet able
to take advantage of the subjective symptom evaluation structured data it presently captures.
Time and resources are required to analyze and validate eCAT-captured data, and there is
competition within the agency for both. For example, much of SSA’s present work on eCAT is
focused on expanding the system to cover additional claim types, such as adult Continuing
Disability Reviews (CDRs).182 And, SSA’s Office of Disability Systems, which handles this
expansion, is also responsible for other agency technology initiatives, such as developing a new
Disability Case Processing System and the Electronic Bench Book discussed below. 183 (SSA plans

22

to incorporate eCAT into the Disability Case Processing System.184) As discussed in the
concluding recommendations, SSA should ensure continued capture of structured information
about subjective symptom evaluation at the initial and reconsideration stages of claim processing
so that it can study and improve subjective symptom evaluation at these levels. It should also
ensure that adequate resources are provisioned to analyze this information.
Quality review at the initial and reconsideration levels
Federal forms and information technologies influence the DDS decisionmaking process as
it occurs. SSA also reviews state and federal disability determinations after they are made, but
before they are effectuated. The Office of Quality Review (OQR) (overseen by the Deputy
Commissioner for Budget, Finance, Quality, and Management) is responsible for quality review
of DDS decisions. OQR also reviews decisions made by ODAR adjudicators, including ALJs.
The focus of federal quality review at all levels of decisionmaking is on ensuring “effective and
uniform administration of the disability program.”185 Federal quality review processes and dispute
resolution mechanisms at the initial and reconsideration levels, as well as in some continuing
disability reviews, are described below. This discussion was informed by review of fifty files
provided by SSA, discussed in-depth below. Given the report’s limited focus on federal actors
and processes, varying state quality assurance systems and state quality reviews that occur prior to
federal quality reviews are omitted from this analysis.
SSA conducts three major types of quality reviews at the initial and reconsideration levels:
quality assurance, preeffectuation review, and targeted denial reviews. The different types of
quality review vary in purpose and selection methodology more than in process. Quality assurance
reviews are focused on assessing the accuracy of the adjudicating component’s disability
determinations. “Performance accuracy” statistics are calculated from some quality assurance
reviews “to determine if individual adjudicating components perform acceptably in terms of
decisional accuracy and documentation requirements.”186 Preeffectuation reviews (PERs) aim to
correct erroneous decisions prior to effectuation. The Social Security Act, as amended, requires
SSA to review fifty percent (50%) of favorable Title II, Title XVI, and concurrent initial and
reconsideration level Disability Determination Services (DDS) determinations on a
preeffectuation basis.187 Recently, SSA has begun targeted denial reviews (TDRs) as well, for
cases in which benefits were denied.188 The purpose of random denial review is to maintain
consistency and quality among denial determinations and to provide equity in disability
adjudication. PER and TDR reviews are selected using a sampling methodology that relies on
predictive modeling to identify error-prone decisions.189 Credibility or subjective symptom
evaluation is not a coefficient in the selection algorithm, although cases where there are likely
issues include those with musculoskeletal impairments.190
Quality reviews of DDS decisions are conducted by a team of individuals, including a
disability examiner, a program leader, and a federal review physician/psychologist or a medical
consultant.191 The quality review process is designed to identify deficiencies in decisionmaking.192
OQR categorizes deficiencies into two groups: Group I deficiencies are substantive, and could
affect the basic decision to allow, deny, continue, or cease disability benefits; Group II deficiencies
are also substantive, but affect only the onset date, ending date, or cessation date for periods of
disability. Only Group I deficiencies are used to calculate performance accuracy statistics. OQR
further characterizes deficiencies within Group I or II as either decisional, where an erroneous
23

decision was made in a fully documented case, or documentation, where a case requires additional
evidentiary development.193
When OQR identifies a returnable deficiency, the case is sent back to the adjudicating
component for correction. All Group I deficiencies are returnable; in some cases, Group II
deficiencies can be corrected during the quality review process, obviating the need for return. 194
Decisions may also be returned for Technical Corrective Actions (TCAs) that would not affect the
substantive outcome in a case.195 As discussed further below, flawed subjective symptom
evaluations identified in quality review would likely be categorized as a substantive Group I
deficiency, and may be either decisional or documentation related. OQR tracks the numbers of
Group I and Group II returns cited, but Conference staff are not aware of any structured data
capture specific to deficiencies or errors in subjective symptom evaluation.196 OQR provided the
Office of the Chairman with the following summary of quality reviews and Group I Returns.197
This summary includes information about reviews and returns that are not used to calculate
performance accuracy statistics.
This data indicates that Group I returns are relatively infrequent—they occurred in less
than four percent (4%) of the half a million reviews that took place across the initial,
reconsideration, CDR and TDRs in FY 2013.

24

If OQR returns a case to a DDS for a Group I or II deficiency, the adjudicating component
may disagree with the quality review finding. When cases are processed electronically, disputes
are filed and resolved through the Request for Program Consultation (RPC) process.198 The Office
of Policy Consultation within ODP is responsible for resolving disputes in order to identify trends
or policy issues that require clarification or training. On receipt, disputes are ordinarily assigned
to an RPC reviewer to thoroughly review the case, including all evidence of record, and to present
the disagreement to a team of RPC staff.199 The RPC process is not a “de novo” review. After a
team vote, the RPC reviewer prepares a resolution that is sent to both DDS and OQR after RPC
manager approval.200 The RPC resolution of the issue is the agency’s official and final response,
and is binding on all components.201 In FY 2014 there were 1,011 requests for RPC, whereas there
were approximately 20,000 Group 1 returns per year in QA, PER, and TDR cases between FY
2011-2013.202 Hence, it appears that in about ninety-five percent (95%) of cases, DDSs acquiesce
to quality review findings.
Quality review, RPC resolution, and subjective symptom evaluation
SSA provided the Office of the Chairman with fifty illustrative RPC files. Review of these
files generated some helpful insights into the RPC process, as well as quality review of subjective
symptom evaluation. The following summary of the fifty RPC files is descriptive and should not
be used as a basis for inferential analysis. It should also be noted that the Office of the Chairman
did not review the full case file but rather reviewed for each case only 1) an OQR-edited DDE and
2) an ODP RPC Resolution document. Therefore we cannot comment on the strength of any
particular adjudicator decision. The DDE was provided as an imaged (portable document format
or PDF) file.203 The ODP RPC Resolution document for each case contains a DDS Summary of
the case, prepared by the DDS; an ODP Narrative, a narrative explanation of the dispute, relevant
case facts, evidence, etc., prepared by the RPC reviewer; and a Resolution, prepared by ODP. SSA
notes on each ODP RPC Resolution document that it does not provide policy guidance (i.e., is not
precedential), but rather is based on consideration of the unique facts and discussion questions
raised by each case.
In the fifty RPC files the initial determination was either disabled (35, fully or partially
favorable) or not disabled (15). In each case, OQR identified a substantive Group I deficiency that
was either decisional (33) or documentation related (16); there was also one Group II
documentation deficiency. As a result of RPC, the OQR identified deficiency was either affirmed
(22, 11 decisional/11 documentation) or rescinded (28, 22 decisional, 6 documentation). In these
fifty files, decisional deficiencies were more likely to be rescinded (22/33 or 66%) than
documentation deficiencies (6/17 or 35%). ODP was more likely to side with the DDS than OQR
regarding whether there was a decisional deficiency.
In several files, a decisional deficiency was rescinded but ODP directed the DDS to obtain
more information before making a determination (about potential substantial gainful earnings,
about past work, medical evidence, etc.).204 In such instances, it is possible that a documentation
deficiency should have been identified, rather than a decisional deficiency, and that the additional
documentation would have the potential to impact the disability determination.205 Hence, ODP’s
rescission of a decisional error identified by OQR does not necessarily mean that the DDS
resolution of the case was policy compliant.

25

At least twelve files specifically referenced observations made by field officers as to a
claimant’s demeanor or presentation, highlighting the importance that these in-person observations
can play in decisionmaking at the DDS level. Discussion of these observations in several ODP
narratives indicates that they can also influence federal quality reviews.206
As noted above, the evaluation of subjective symptoms is not a coefficient in the algorithm
used to select files for quality review. Nonetheless, SSA provided the Office of the Chairman with
a number of RPC files that raised subjective symptom issues. Of fifty files reviewed, twenty-six
contained substantive OQR or ODP discussion of the DDSs’ subjective symptom evaluation.
OQR specifically identified “Symptoms and Credibility” as a primary review issue in six files.
Subjective symptom evaluation was substantively discussed by ODP in twenty-three files. In three
of these files, both OQR and ODP identified or discussed subjective symptom evaluation as part
of their review. A summary of these twenty-six files is presented in Appendix D: Summary of
Request for Program Consultation Files Discussing Subjective Symptom Evaluation.
In each case, OQR identified a substantive Group I deficiency that was either decisional
(12) or documentation related (14). As with the larger set of files, cases in which OQR identified
deficiencies were not limited to those in which benefits were awarded—the initial determination
was disabled in 15 files and not disabled in 10 files (in one file, the initial determination by DDS
was indeterminable). As a result of the RPC process, the OQR identified deficiency was either
affirmed (16: 6 decisional, 10 documentation) or rescinded (10: 6 decisional, 4 documentation).
In the twenty-three files in which ODP discussed subjective symptom evaluation,
decisional deficiencies were again more likely to be rescinded (5 of 11, or 46%) than
documentation deficiencies (2 of 12, or 17%). ODP was more likely to side with OQR on the
question of whether a decisional or documentation deficiency occurred than in the set of all 50
files, but still rescinded nearly half of OQR-identified decisional deficiencies. In contrast, ODP
almost always agreed with an OQR finding that additional record development was needed. A
decisional deficiency was rescinded in two files where ODP directed the DDS to develop the
record, perhaps indicating that the deficiency in these files was instead related to documentation.207
In one file, the DDS asked ODP to consider whether the decisional deficiency identified by ODP
was actually a documentation deficiency.208
In most files in which ODP discussed subjective symptom evaluation (twenty-one of
twenty-three), including in four files where an OQR-identified decisional deficiency was
rescinded,209 ODP found that the DDSs’ subjective symptom evaluation was not policy compliant.
In fourteen files, DDSs were directed to further develop the record, such as by obtaining or
verifying medical evidence and test results or up-to-date statements about activities of daily
living.210 In thirteen files, state DDSs were directed by ODP to provide detailed rationales and
specific evidence-based explanations for their credibility determination.211 These ODP directives
are similar to judicial admonishments at the hearing office level (discussed below), discouraging
ALJs from using conclusory language in lieu of making specific findings.
In three files where decisional deficiencies were rescinded and in one file where it was
affirmed, ODP found that OQR’s discussion of subjective symptom evaluation was not policy
compliant.212 In three of these four files, ODP found that the underlying analysis in the DDS
decision was also not policy compliant.213 In a few files, OQR raised issues regarding the DDS
subjective symptom evaluation that were not addressed by ODP in the RPC resolution.214 These

26

observations may evidence the complex nature of the determination and review process, and some
difficulty even at the quality review and ODP dispute resolution levels in addressing all of the
issues raised in a particular case.
As in the larger set of cases, field officer observations were sometimes significant.215 For
example, in file 0114-005, the field officer observed that the claimant used a cane and moved
slowly and also commented that “Claimant did not appear to be embellishing her discomfort. Her
movement and actions all seemed sincere.”216 Since the disability determination in this case
hinged on subjective symptoms that were alleged to be more disabling than indicated by the
medical evidence of record, the field office characterization of the claimant’s credibility appeared
to have a positive impact on the ODP decision to rescind the documentation deficiency identified
by OQR, which had sought to require the DDS to obtain additional medical evidence of
disability.217
A number of files contained references to credibility or subjective symptom evaluations
outside of the section of the DDE devoted to analysis of this policy issue. For example, some
DDEs included subjective symptom evaluations by medical or psychological professionals or in
the section of the DDE dedicated to additional information about the claimant’s RFC or in Case
Analyses prepared by these individuals.218
These fifty RPC files offer only a limited window into subjective symptom evaluation at
the DDS level, as well as into the quality review process. This review indicates that problematic
subjective symptom evaluation occurs in both favorable and unfavorable benefit determinations.
These problems are similar to those identified in agency decision-making at other adjudicative
levels and discussed later in the report. Specifically, subjective symptom evaluations were found
to be improper in the cases where detailed rationales and specific evidence-based explanations
were lacking or where additional record development was needed.
B.

ODAR hearing office and Appeals Council levels

SSA’s ODAR administers federal adjudication of social security claims appealed after state
DDSs have made an initial determination and, in non-Prototype states, resolved requests for
reconsideration.219 ODAR’s Office of the Chief Administrative Law Judge oversees SSA’s
nationwide hearings process. If a claimant is dissatisfied with an ALJ’s adverse decision, he or
she may appeal the hearing level decision within sixty days to the Appeals Council.220 Review or
denial of review by the Appeals Council is the final step in the administrative process. 221 The
Appeals Council and its staff are housed within ODAR’s Office of Appellate Operations. ODAR’s
Office of Appellate Operations is also home to the Division of Civil Actions, under the Executive
Director of the Office of Appellate Operations, and the Division of Quality. The Division of Civil
Actions analyzes and recommends actions on cases remanded by the federal courts. The Division
of Quality (which is distinct from OQR) aids the Appeals Council in the exercise of its quality
review responsibilities.

27

Adjudication tools
At the hearing office level, SSA has its decisionmakers write decisions using the FIT
electronic software program, whenever possible.222 These templates provide a decisional shell for
hearing office personnel (ALJs or decision writers) to draft decisions that adhere to applicable
statutory and regulatory requirements. The FIT program provides more than 2,000 templates that
cover the majority of decisional outcomes.223
According to former SSA Commissioner Michael J. Astrue, use of the FIT “improves the
legal sufficiency of hearing decisions, conserves resources, and reduces average processing
time.”224 For example, SSA’s present guidance to adjudicators using the FIT directs them to
“evaluate each [subjective symptom] allegation in light of the objective medical evidence and other
evidence regarding the relevant factors listed in the symptoms regulations and SSR 96-7p.”225
ALJs report that FIT use improves the quality of their decisionmaking and helps them to review
and edit decisions more quickly.226 However, as discussed in-depth later in the report, use of these
templates—and particularly their language with respect to subjective symptom evaluation—is not
without criticism.
As it has done at the DDS level, SSA is presently developing a web-based electronic tool
to guide agency decisionmaking at the hearing office level; this initiative is known as the
Electronic Bench Book (eBB). According to Chief Information Officer Zielenski, “eBB aids in
documenting, analyzing, and adjudicating disability cases at the hearings level in accordance with
the Social Security Act and our regulations.”227 Adjudicators and other SSA personnel, such as
decision writers, use eBB to “review the case file, take notes at the hearing, record analysis
throughout the decisionmaking process, and prepare hearing instructions. eBB guides users
through every step of the sequential evaluation process to ensure that each step is fully
addressed.”228 A limited version of the program was deployed to three pilot sites in August of
2012, and in a 2013 estimate SSA expected that as many as fifty percent (50%) of ALJs would be
using eBB by the end of 2014.229 Eventually, eBB is expected to fully replace the FIT program.230
Appeals Council pre-effectuation review of adjudicator decisionmaking
SSA’s Appeals Council has authority to review ALJ decisions where a claimant appeals231
or on “own motion” review, which occurs prior to effectuation and on unappealed cases.232 Own
motion review of ALJ cases may include unfavorable cases and dismissals, though to date the
Appeals Council has only selected those cases where the benefits determination was fully or
partially favorable to the claimant for own motion review.233 Either type of review may result in
a remand of an adjudicator’s decision for further action. As discussed below, flawed subjective
symptom evaluation can be a basis for remand in cases appealed to the Appeals Council or on
Appeals Council own motion review, including in cases where benefits would have been awarded.
SSA provided the Office of the Chairman with forty-five files illustrating Appeals Council
review of ALJ decisionmaking involving subjective symptom evaluation. Each file provided by
SSA consisted of (1) a hearing level disability determination made by an ALJ; and (2) an action
by the Appeals Council, except that Unappealed (Own Motion) Effectuations did not include any
documentation from the Appeals Council. As with the RPC files, the Office of the Chairman did
not review supporting record materials and therefore cannot substantively comment on the strength

28

of any adjudicator’s decision. Nonetheless, review of these files provided a number of descriptive
insights relating to subjective symptom evaluation; results are described below by the type of
review (appealed or unappealed (own motion)) and Appeals Council decision (denial, remand, or
effectuation).
Denials of Appealed Unfavorable Decisions (11 files): In these files, a claimant requested
review of an unfavorable decision by the Appeals Council and the Appeals Council denied review.
In each file, the ALJ found the claimant to be only partially credible. In three files, ALJs used
boilerplate template language statements finding that a claimant’s subjective symptom complaints
were not credible to the extent they were inconsistent with the assessment of residual functional
capacity.234
Remands of Appealed Unfavorable Decisions (10 files): In these files, a claimant requested
review of an unfavorable ALJ decision by the Appeals Council; the Appeals Council granted
review and remanded for further consideration by the ALJ. Nine of ten remands were issued in
part due to a flawed subjective symptom evaluation. In six of these remands, the Appeals Council
did not believe that the ALJ had appropriately considered the regulatory factors.235 In three files,
the Appeals Council cited the ALJ for failure to adequately consider the claimant’s subjective
complaints.236
Unappealed (Own Motion) Effectuations (10 files): On own motion review, the Appeals
Council examined files favorable to the claimant and effectuated, rather than remanded, the ALJ
decision. In eight files, the ALJ decision found the claimant to be generally credible and issued a
favorable decision, even though none of the claimant’s medically determinable impairments met
or medically equaled listing severity.237 In each of these eight files, the ALJ gave the state agency
medical and/or psychological consultants’ opinions little weight.238 Specific reasons for finding
the claimant credible included a strong work history by claimant239 and consistency between
testimony and medical evidence.240 In the two remaining files, the ALJ conducted a more
complicated and detailed subjective symptom evaluation, with mixed credibility findings. 241
Unappealed (Own Motion) Remands (13 files): In each of these files, an ALJ decision that
was fully favorable to the claimant was selected for own motion review and remanded by the
Appeals Council. In twelve remands, the Appeals Council directed the ALJs to re-evaluate the
claimant’s subjective symptoms and to provide a detailed rationale. More than half of these
thirteen ALJ decisions were found to lack specific or sufficient support for the credibility
determinations.242 Additional reasons for remand included failure to discuss or reconcile
inconsistencies in a claimant’s testimony or between testimony and the medical record,243 or to
address a claimant’s noncompliance with prescribed medication or other treatment.244
Post-effectuation review of hearing level decisions by OQP
In addition to pre-effectuation review, SSA can conduct post-effectuation reviews of
hearing level decisions, which do not impact the outcome of the case. These reviews may be
undertaken by OQP, through random sampling.245 SSA provided the Office of the Chairman with
fifty files illustrating OQP review of hearing level decisions. OQP review is normally not outcome
determinative, but rather is used by ODAR to ensure policy compliance and to identify necessary
training.246

29

If the OQP reviewer disagrees with the ALJ decision, then the cases are then referred to
the Appeals Council for review by an Administrative Appeals Judge (AAJ).247 Each file contained
three parts: (1) the ODAR Disability Adjudication decision, written by an ALJ; (2) a Hearing
Level Disagreement Referral Form, in which the OQP reviewer evaluated the hearing level
decision; (3) an AAJ Review Findings form, evaluating the quality reviewer’s decision. With one
exception, the AAJ’s consistently agreed with the OQP reviewer.248
SSA indicated that about half of the files involved problematic subjective symptom
evaluation.249 In general, evaluations were flawed due to the ALJ’s failure to adequately follow
the symptom evaluation regulations and policies. In these files, OQP reviewers cited ALJs for
several errors in subjective symptom evaluation, including failure to: address inconsistency in the
claimant’s testimony or inconsistency between testimony and other evidence in favorable
decisions;250 confront the claimant about inconsistent or incomplete evidence in favorable and
unfavorable decisions;251 address an external reason to believe the claimant was not credible in
favorable decisions;252 or hold a hearing of adequate length in favorable cases.253
Bias complaint redress procedures
The Padro v. Colvin class-action litigation demonstrates that some claimants are concerned
that adverse credibility evaluations are sometimes premised on bias.254 All agency adjudicators,
including ALJs, are obligated to fulfill their duties with fairness and impartiality. 255 SSR 13-1p:
Titles II and XVI: Agency Processes for Addressing Allegations of Unfairness, Prejudice,
Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJs) identifies
three separate processes for addressing such complaints when leveled at the federal hearing office
level, including Appeals Council review, Division of Quality Service complaint investigation, and
civil rights investigations.256
According to a recent report by SSA’s Office of the Inspector General, in FY 2011, SSA’s
Division of Quality Service closed 1,490 bias complaints against 594 of the 1,500 ALJs hearing
cases in FY 2011.257 While the number of complaints is less than one percent (1%) of the number
of hearings conducted at the ALJ level in FY 2011, they involved about forty percent (40%) of the
ALJ corps.258 Only four percent (4%) of these claims were substantiated after further review, but
eleven percent (11%) were closed because the 75 ALJs against whom bias allegations were made
left SSA before the complaint was reviewed.259 The status of five percent (5%) of the claims was
not documented.260 Hence, at least four percent but perhaps as many as twenty percent (4-20%)
of these claims may have been substantiated had they been fully reviewed or documented.
However, it is unknown whether these complaints related to subjective symptom evaluation.
Additionally, SSA provided Administrative Conference staff with eighty-one sample bias referrals
in individual cases both before and after adoption of SSR 13-1.261 Seventeen of these complaints,
all of which were made prior to issuance of SSR 13-1, contain allegations of bias that appear to be
related to subjective symptom evaluation.262 It is unknown whether any of these allegations were
substantiated. Information about other processes for bias complaints was not readily available,
though it is noteworthy that the Office of the Inspector General recommended that SSA share with
the public information about the civil rights complaints process in agency literature explaining
how to file unfair treatment complaints against ALJs.263 SSA appears to have incorporated this
suggestion into SSR 13-1p.264
30

ODAR analysis of remand reasons
In an effort to improve its decisionmaking, ODAR has in recent years implemented a
pioneering and laudable system of data collection and analysis designed to track the outcome of
agency adjudications on review, both internally, by the Appeals Council (for both requests for
review by claimants and on own motion review), and externally, by the federal courts. SSA’s
efforts include a focus on cases where the agency’s final disability decision is returned to the
agency for further evaluation. SSA personnel assess these cases and categorize the reason or
reasons for remand.265 Up to three reasons for remand can be identified per decision, including a
variety of remand reasons related to credibility evaluation. The relevant results of this data
collection and analysis are reported below.
ODAR classifies remands on claimant credibility evaluation classification into five subcategories, as follows:
 Claimant credibility—failed to acknowledge unavailability of treatment: the adjudicator
considered the claimant’s failure to pursue treatment in the credibility evaluation, but the
record evidence indicated (or perhaps would have indicated if the record were developed)
that treatment was not available.
 Claimant credibility—failed to apply two-step analysis: the process that should be followed
is: 1) establish the existence of a medically determinable impairment, 2) evaluate the
intensity and persistence of the person's pain or any other symptoms and determine the
extent to which the symptoms limit the person's capacity for work.266
 Claimant credibility—failed to discuss appropriate credibility factors: the credibility
factors are set forth at 20 CFR §§ 404.1529(c)(3) and 416.929(c)(3).
 Claimant credibility—finding not made: the adjudicator failed to make a finding regarding
the credibility of the claimant.
 Claimant credibility—other issue: this appears to be a catchall provision.
The sub-categories are not mutually exclusive. So, for example, a finding of claimant credibility—
other issue could be a basis for remand with or without another more specific reasons for a
credibility evaluation remand. As a result—and because some remands are evidently not coded—
the number of remands and the total percentage of remands involving credibility evaluation may
well be higher than reported.
Percentage of
Remands

Credibility-Based Reasons for Remands
as Classified by the SSA

Classified as
"Failed to Discuss
Appropriate
Credibility
Factors"

30%
20%
10%
0%

(22%)

(21%)

(18%)
(3%)

(5%)

(9%)

Classified as
"Other Issue"

Appeals Council Fiscal Division of Quality Fiscal U.S. District Courts Fiscal
Years 2009-2012
Years 2011-2013
Years 2009-2012

As shown above and discussed in Appendix E: SSA Data on Subjective SymptomRelated Remands, claimant credibility—failed to discuss the appropriate credibility factors was
the most frequent basis for a subjective symptom-related remand by the Appeals Council and
31

federal district courts.267 In these cases, adjudicators are making the required credibility/subjective
symptom evaluation, but are not doing so appropriately.
Claimant credibility—failed to discuss the appropriate credibility factors was the basis for
remand in a similar percentage (18-22%) of remanded cases at the Appeals Council and in the
courts. As discussed in the next section of the report, adjudicator failure to discuss the regulatory
credibility factors was also identified as a major reason for remand in an independent analysis of
judicial remands conducted by the Conference staff.
Claimant credibility—other issue was the second most commonly cited subjective
symptom-related remand reason. Notably, this remand reason was identified more frequently in
judicial decisions (9% of cases) than in internal agency review decisions (fewer than 3% of cases).
The types of “other issues” that appear in the case law are discussed further below. SSA’s analysis
of remand data did not identify the failure to acknowledge the unavailability of treatment or to
apply the two-step analysis as a common reason for remand.268
V.

JUDICIAL REVIEW AND REMANDS OF SUBJECTIVE SYMPTOM EVALUATIONS

Judicial review of federal social security disability cases is exceptional by several
measures.269 First, few social security claims are appealed to federal court relative to the total
number of claims filed at the administrative level: 16,422 cases were filed in federal courts in FY
2012.270 In the same year, 3,158,421 applications for benefits were filed, and 849,869 appeals
were made to ALJs.271 It naturally takes some time for a claim to make its way through the
administrative process to judicial review, but using these numbers to calculate a crude appeal rate
indicates that only about one half of a percent (0.5%) of initial claims and only about two percent
(2%) of ALJ decisions are appealed to federal court.
Second, the low appeal rate notwithstanding, social security cases impose a unique burden
on the federal judicial system. In the 2013 calendar year, 19,977 social security appeals comprised
about seven percent (7%) of all civil cases filed in district courts.272 While the number of cases
heard by the federal courts is only a minimal fraction of those heard by state and federal disability
adjudicators, reducing the burden of these cases on the federal courts by identifying and
proactively addressing bases for remand at the administrative level (and thereby reducing error) is
a worthwhile endeavor.
Third, social security cases are unusual given the high frequency with which decisions, by
consent, or reports and recommendations are issued by a magistrate judge.273 Social security cases
excluded, much initial review of formal federal agency adjudication is in appellate rather than trial
courts.274 Social security cases are an important exception to the traditional framework because
the sheer volume of cases appealed to federal court would overwhelm courts of appeals. 275 The
reliance on magistrates to decide or to offer recommendations and reports in social security cases
is perhaps reflective of a similar strain placed on district courts by the large disability caseload.
Finally, district court review of social security cases is appellate in nature.276 This
congressional design choice is unsurprising given the massive volume of disability adjudications
and the workload that de novo factual determinations would place on a judicial system already
heavily burdened by social security cases. It is atypical, however, given the traditional role of

32

district court judges (and sometimes magistrate judges) as “finders of facts.”277 The deferential
“substantial evidence” standard of review in social security cases, discussed further in the
following section, places these judges in a relatively unusual operative role.278 This role is so
unusual that it may not be universally recognized in cases heard by magistrate judges. A 2007
survey garnering responses from half of then-sitting magistrate judges indicated that nearly a third
would characterize their review of social security cases as involving issues of fact. 279 According
to the retired magistrate judge who conducted the survey, this is “despite uniform appellate court
description of the issue as one of law, demonstrat[ing] a clear disconnect between the district and
circuit courts. . . .”280
The district court’s (or magistrate judge’s) appellate role is especially atypical in social
security cases involving review of adjudicator credibility evaluation. This is an area of law in
which the trial judge would ordinarily make the factual determination and would be the actor to
whom deference would be afforded.281 Even when a district court judge reviews a magistrate
judge’s findings outside the social security disability context, it often must conduct a de novo
evidentiary hearing, especially when credibility findings are at issue. Courts of appeals in six
circuits require a new evidentiary hearing before a district court judge can “reject a magistrate’s
proposed outcome-determinative credibility-based finding . . . when the result is likely to be
conviction of a criminal defendant.”282 Review of credibility determinations in social security
cases is different than review of credibility findings in the criminal context in part because the
magistrate or district court judge is reviewing rather than making the credibility findings at issue.283
It is also distinguishable because the rejection of an adverse credibility finding in the social security
context would ordinarily benefit the claimant, rather than subject him or her to criminal
punishment or loss of benefits. Finally, the ordinary response to a flawed credibility evaluation (if
it is not harmless error, or where the credit-as-true rule discussed below is not applied) is to remand
the case and to require SSA to conduct a new evidentiary hearing, thereby obviating due process
concerns. It is not apparent whether judges distinguish between credibility evaluations made in
different contexts. It is clear that credibility evaluation is a frequent basis for judicial remands in
social security disability cases, which may indicate that review in this context is less deferential
than judicial review of other types of credibility determinations or than one might expect given the
court’s appellate function and the “substantial evidence” standard of review.284
As the statistics introducing this part of the report demonstrate, its focus on judicial review
is somewhat myopic. The hope is that by identifying issues that commonly result in remands when
cases are appealed to federal courts, and offering suggestions to address them, SSA can improve
its own internal decisionmaking even in unappealed cases. Individual remands provide important
feedback to adjudicators and the agency in particular cases, but as SSA has recognized, systemic
analysis can help to identify widespread problems with subjective symptom evaluation.
A.

Judicial review standards

42 U.S.C. Section 405(g) establishes the standard for review of the Commissioner’s
decision by a district court: “The findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive. . . .”285 Substantial evidence requires
“more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”286 It need not rise to the level of preponderance.287 On
appeal to a circuit court, the court applies the same substantial evidence standard as the district
33

court and otherwise reviews the district court’s decision de novo. 288 An administrative
determination may be reversed if it is factually unsupported by substantial evidence or if the
adjudicator did not apply the proper legal standards.
Review is on a certified copy of the transcript of the record, including the evidence on
which the findings and decision complained of are based.289 The reviewing court is to evaluate
the entire record—not just those parts of it that support the finding of SSA—and must take into
account “whatever in the record fairly detracts from its weight.”290 The court should not, however,
reweigh the evidence or substitute its judgment for the agency’s.291 SSA’s failure to explain the
rationale behind a decision is reversible error.292
B.

Federal case law overview

As detailed above, the history of SSA’s standards for subjective symptom evaluation is
fraught with litigation. Judicial review of the agency’s actions has long been searching.293 While
SSA’s compromise policy positions were ultimately endorsed by Congress and courts, the
agency’s early refusal to fully implement varied (or even conflicting) judicial directives on
subjective symptom evaluation may have contributed to a judicial review climate in which the
agency’s activities continue to be closely scrutinized and earlier critical precedent relied upon.294
Today, the overall remand rate in social security cases heard in the federal courts is
approximately forty-five percent (45%).295 Data provided by SSA indicate that between FYs 2009
and 2012 subjective symptom or credibility evaluation was an issue in at least one of five of these
remands (or about 9% of all social security cases heard by the federal courts). In nearly one of ten
remands (or about 5% of judicially reviewed social security cases), ODAR’s data identify “other
issues” pertaining to subjective symptom evaluation at play. The frequency with which remands
due to subjective symptom evaluation occur may raise questions about the efficacy of the current
process for evaluating the credibility of claimants who report that subjective symptoms contribute
to their disability.296
In remanded cases, courts often do not believe that SSA adequately explained why it
discredited a claimant’s reports of subjective symptoms. They find insufficient discussion of the
multiple factors SSA’s regulations direct its adjudicators to consider in assessing a claimant’s
subjective symptoms.297 The courts have placed a high burden on the disability program’s
adjudicators to discuss and describe their findings. Specific findings are considered essential to
ensuring the reviewability of administrative disability determinations, especially those based on
credibility. It is important to note, however, that SSA adjudicators are not required to make a
“formalistic factor-by-factor recitation of the evidence” when making a credibility assessment, so
long as they set forth the specific evidence relied upon.298
Conference staff studied relevant federal case law at both the appellate and district court
levels in order to ensure independent analysis and identification of common causes of credibility
or symptom evaluation-related remands. We also sought to better understand SSA’s data
regarding such remands. For example, the subjective symptom-related remand reason most
frequently identified by ODAR, failed to discuss appropriate credibility factors, could apply to
one, two, some, several, or all of the seven regulatory factors adjudicators are directed to consider
when symptoms suggest a greater severity of impairment than can be shown by objective medical

34

evidence alone.299 Improper consideration of even one factor might be a basis for a judicial remand
where the factor was potentially dispositive. The number of combined possible problematic
approaches to credibility evaluation based on a set of seven factors is 127, demonstrating the
generality of this remand reason. (If one were to include the four “factors” discussed in SSR 967p, the agency’s zone of defense would be even larger, and the remand reason even more general.)
Similarly, the second-most frequently identified remand reason, other issue, lacks specificity
sufficient to produce a real understanding of these judicial and Appeals Council remands.
Conference staff developed a methodology to focus case law research on judicial opinions
issued between January 1, 2009 and December 31, 2013 that specifically cite SSR 96-7p and also
discuss credibility or pain or subjective symptoms.300 This methodology identified 105 relevant
cases in the courts of appeals and 8,384 in the district courts citing SSR 96-7p between 2009 and
2013.301 Results of staff review of appellate court and a sample of district court decisions are
summarized in the following sections. An important caveat about the findings reported below is
that, particularly at the district court level, many opinions identified by the methodology and
available on LexisNexis® were not published in federal reporters and may not carry precedential
weight or as much precedential weight as published opinions in some jurisdictions. Precedential
appellate citations for common remand reasons are provided in Appendix F: Appellate Case Law
Citations where possible.
C.

Appellate review

Conference staff reviewed all 105 relevant cases in the courts of appeals to determine their
disposition (affirm, remand to SSA, remand to district court, other). Problematic symptom or
credibility evaluation led to remand (only once with a direct award) in twenty-nine cases (nearly
28%). There was substantial variance across circuits both in the number of cases heard and in case
disposition. While several circuits heard only two or three cases citing SSR 96-7p and discussing
credibility or subjective symptoms or pain, the Seventh Circuit heard thirty-four. It remanded
seventeen cases (46%), which is a higher number than heard by any other appellate court. The
Sixth Circuit remanded four of the twelve cases citing SSR 96-7p it considered (33%) because of
problematic credibility evaluations, once with a direct award of benefits. All other circuits had
remand rates below twenty-five percent (25%), with the exception of the Eighth Circuit, which
heard only two cases and remanded one. Some circuits did not remand any cases.
Each judicial opinion in which the SSA’s decision to deny benefits was returned by a court
of appeals to the agency was further analyzed to identify: other bases for remand, medical
impairments providing the basis for the claim of disability, and the specific reasoning behind a
remand related to credibility or subjective symptom evaluation. Credibility was rarely the
exclusive basis for remand (five of twenty-nine subjective symptom-related remands); in the
majority of cases, there was at least one other basis for remand. More than half of appellate
remands in cases citing SSR 96-7p, sixteen of twenty-nine, were also returned due to problematic
application of the treating physician rule. Approximately two-thirds of appellate remands involved
a musculoskeletal impairment; one-third involved depression, anxiety, or another mental illness.302

35

Common bases for remand
Cases were reviewed to specifically identify bases for credibility or subjective symptom
related reasons, and several common issues were identified as occurring in two or more circuits.
Five common remand issues are described briefly below, alongside an italicized list of appellate
courts with supporting precedent and with citation to exemplary precedent.303 A full set of
supporting case citations, by appellate court, are provided in Appendix F: Appellate Case Law
Citations. These common remand reasons are more specific than the remand reasons coded by
SSA but are not necessarily mutually exclusive.
No First Circuit cases citing SSR 96-7p were identified by the methodology. Conference
staff found case law addressing only one remand issue in each of the Fourth and Fifth Circuits
Both heard less than three of the 105 relevant cases identified by the methodology.
In comparison to other circuits, review of the agency’s action in the Seventh Circuit appears
to be somewhat anomalous. As noted above, the Seventh Circuit heard more than twice as many
cases citing SSR 96-7p as any other appellate court.304 The court’s remand rate on subjective
symptom evaluation was comparable to the overall remand rate for social security disability cases,
and was higher than other appellate courts hearing more than one case. Each of the common
remand reasons arose in the Seventh Circuit. It may be that the Seventh Circuit gives disability
cases involving credibility determinations a relatively hard look.305 But the issues the Seventh
Circuit has identified as problematic are not unique. Each of the common bases for remand
identified in the Seventh Circuit was also a basis for remand in at least two other circuits, and the
Tenth Circuit remanded cases for four of the five common remand reasons identified below.
(1) Activities of daily living
The SSA federal adjudicator treated activities of daily living that were not comparable to
full time employment or transferable to a work environment as evidence that the claimant was not
disabled: 2nd, 6th, 7th, 8th, 9th, 10th, 11th Circuits.306 SSA adjudicators are required to consider
daily activities as a factor in evaluating subjective symptoms under the regulations. 307 For
instance, the Ninth Circuit in Orn v. Astrue rejected an adjudicator’s adverse credibility
determination because it was premised on a finding that the claimant read, watched television, and
colored in coloring books.308 The court pointed out that the claimant’s testimony regarding these
activities was consistent with other testimony in the record and that the activities did not meet the
threshold for transferable work skills necessary for an adverse credibility finding.309
(2) Absence of treatment
The SSA federal adjudicator found the claimant not credible because the adjudicator
viewed an absence of treatment for subjective symptoms as evidence of non-disability: 3rd, 6th,
7th, 8th, 9th, 10th Circuits.310 Treatment via medication and other forms of treatment are two of
the seven factors SSA’s adjudicators are directed to consider under the regulations for subjective
symptoms evaluation.311 Internal agency guidance also directs adjudicators to develop the record
regarding failure to follow prescribed treatment.312
ODAR identifies remands in which the adjudicator failed to acknowledge unavailability of
treatment in its own analysis of Appeals Council and judicial opinions, but this issue is rarely
flagged by SSA staff at the hearing office level. The remand reason identified by Conference staff
36

is broader in scope than the SSA remand code. For example, it was used to categorize cases where
an adverse credibility determination was remanded because it was premised on the claimant’s
decision not to pursue treatment that was available but that was “aggressive,” not recommended,
or not “clearly expected” to work.313 SSA’s regulations and SSR 82-59 offer some examples of
acceptable reasons for not following treatment that adjudicators should consider if presented.314
(3) Boilerplate / conclusory language
The ALJ relied on “boilerplate” template language or conclusory language in lieu of
specifying reasons for credibility conclusion or made a determination of the claimant’s ability to
work or RFC prior to analyzing his or her subjective symptoms and credibility (consistent with
prior FIT language): 3rd, 5th, 7th, 9th, 10th Circuits.315 Use of the template language is not in and
of itself an error that warrants remand; rather, some FIT-reliant ALJ opinions are rejected for
conclusory language found to be unsupported by specific findings.316 Courts have also taken issue
with the formulated approach to credibility evaluation, which previously described a claimant’s
statements as “not credible to the extent they are inconsistent with the above residual functional
capacity assessment.”317
Notably, ODAR updated FIT in May 2012 to remove language comparing the claimant’s
statements about his or her symptoms with the RFC assessment; the revised template language
was deployed in December 2012.318 Because SSA cases naturally take some time to wind their
way through the system, some decisions relying on the prior FIT language may still be subject to
judicial review. So far, this revision appears to have passed without comment, but courts have
previously criticized variants of the template similar to the language applied today. 319 Judicial
opinions have been consistently critical of template language that describes an adverse credibility
finding as one in which the adjudicator determines that the claimant is “not entirely credible.”320
According to Judge Posner of the Seventh Circuit, this language “is not only boilerplate; it is
meaningless boilerplate. The statement by a trier of fact that a witness' testimony is ‘not entirely
credible’ yields no clue [as] to what weight the trier of fact gave the testimony.”321
(4) Required objective medical evidence of subjective symptoms
The SSA federal adjudicator effectively required objective medical evidence of the
subjective symptoms themselves after a medically determinable impairment was established: 2nd,
4th, 6th, 7th*, 9th Circuits.322 SSR 96-7p clearly states that “an individual's statements about the
intensity and persistence of pain or other symptoms or about the effect the symptoms have on his
or her ability to work may not be disregarded solely because they are not substantiated by objective
medical evidence.”323 One ALJ’s opinion was rejected by the Second Circuit for requiring a
claimant’s allegations of pain to be “well supported” by medical evidence, which the court found
to be an “undue burden.”324
(5) Disregarded or rejected supporting medical evidence
The SSA federal adjudicator failed to consider or adequately explain rejection of contrary
medical judgments or medical evidence in the record supporting claims of subjective symptoms:
2nd, 7th, 10th Circuits.325 Consideration of medical evidence is required by the regulations.326
This basis for remand is particularly important in the Second Circuit, where “only allegations
beyond what is substantiated by medical evidence are to be subjected to a credibility analysis.”327

37

Circuit-specific findings
A few circuit-specific issues were identified as implicating the subjective symptom
evaluation process.
Positive work history—The Second Circuit has held that a claimant with a positive work
history is entitled to substantial credibility. 328 This holding, which dates to 1980, was identified
as an issue in the Steinberger litigation previously discussed. It is included in the Manual of
Second Circuit Disability Decisions, which SSA’s adjudicators hearing claims from New York
State residents are still directed to follow.329 Remands issued in reliance on this holding were not
observed in the appellate case law identified by our methodology. This may be because the 1991
regulations and SSR 96-7p state that adjudicators will consider statements about a claimant’s
“prior work record and efforts to work” in evaluating credibility.330
However, as discussed further below, consideration of work history continues to provide a
basis for remand in district court opinions in the Second Circuit. Accordingly, Conference staff
conducted follow-up research on the application of this holding at the circuit court level. We
identified similar (and similarly dated) holdings in the Third and Eighth Circuits331 A more recent
Ninth Circuit case held that a claimant’s work record may be considered during a credibility
evaluation, but did not specify how to weigh the work record relative to other considerations.332
Most recently, in a 1998 opinion, the Second Circuit clarified that “work history is just one of
many factors that the ALJ is instructed to consider in weighing the credibility of claimant
testimony.”333 In the same opinion the Second Circuit explained that a poor work history may also
be probative of credibility and, despite allegations of bias, declined to adopt a categorical rule
prohibiting consideration of poor work history.334
Credit-as-true rule—The credit- (or accept-) as-true rule is an additional circuit-specific
holding observed in the Ninth and Eleventh Circuits. This holding was not observed in the
appellate case law identified by our methodology. We first identified the challenges of this rule
for SSA in our report on the treating physician rule, which describes the application of the rule to
certain medical evidence.335 As applied in the credibility context, the credit-as-true rule says that
where an ALJ failed to articulate reasons for discrediting a claimant’s testimony, the court should
hold as a matter of law that the adjudicator has accepted the testimony as true, and then determine
whether to award benefits.336 This does not necessarily mean that benefits will be awarded.337
Moreover, there is authority to support the proposition that courts within the Ninth and Eleventh
Circuits may apply the credit-as-true rule at their discretion.338 As a result, as well as due to dated
information on comparative information on outcomes at SSA post-remand, it is difficult to
determine the relative impact of this rule on actual case outcomes.339
Conference staff used LexisNexis’® Shepard’s® Citation Service to identify judicial
opinions in the Ninth and Eleventh Circuits citing the seminal credit-as-true cases, Varney in the
Ninth Circuit and Hale in the Eleventh. This methodology identified nineteen appellate remands
in the Ninth Circuit applying the credit-as-true rule, thirteen of which led to awards (68%). Only
five remands applying the rule in cases citing Hale were found in the Eleventh Circuit, and only
two of these cases were remanded for an award of benefits (40%). These award rates are
comparable to or lower than the last known award rates by SSA on remand.340

38

D.

District court review

Given the sheer volume of district court cases citing SSR 96-7p between 2009 and 2013
(8,384 opinions, or an average of 1,679 cases per year), it was not possible to analyze the full
population over the study time period. After several conversations with statistical or empirical
legal experts, we decided to conduct a simple random sample of ten percent (10%) of the
population (839 cases) for purposes of analysis.341 We selected the sample of cases using random
numbers provided by Professor Jonah Gelbach, an empirical legal scholar at the University of
Pennsylvania Law School whose expertise is federal-court litigation. Although the geographic
distribution of cases in the sample at the circuit court level corresponded closely to the population
distribution, findings should not be used to make comparisons or statistical inferences at either the
circuit or district court levels. Accordingly, results are presented for the full sample, rather than
by circuit or district.
We used our experience reviewing appellate case law to similarly analyze district court
cases. The entire sample was initially coded for disposition (e.g., affirm, remand, remand with
award). Remanded cases were then further analyzed to determine whether one or more of the
common bases for remand identified based on appellate court opinions were at issue, as well as to
identify other bases for remand unrelated to subjective symptoms.342 Staff also noted whether a
magistrate judge made an initial recommended decision or decided the case on consent, as well as
identified alleged impairments.343
The overall remand rate for the district court case sample was about thirty-five percent
(35%).
Twenty-six percent (26%) of sampled district court cases (222) were remanded due to
problematic subjective symptom or credibility evaluation. This is similar to the appellate remand
rate of twenty-eight percent (28%). As at the circuit court level, this is a higher remand rate than
observed by SSA for the most common claimant credibility remand reason (21% for claimant
credibility—failed to discuss the appropriate credibility factors).345 Two factors may help to
explain this variance. First, it does not appear that all SSA remands are coded, and hence a
particular remand reason may occur more frequently than reported. Second, no information was
available about the co-incidence of remand reasons in individual cases. The overall remand rate
for reason of claimant credibility may be higher than the remand rate for any sub-category reason
for remand if the sub-category remand reasons are not always observed together.
344

Flawed credibility or subjective symptom analysis was the sole basis for remand in fewer
than twenty-five percent (25%) of sampled remanded cases, meaning that most cases also involved
another basis for remand, such as misapplication of the treating physician rule. Nearly forty-five
percent (45%) of the subjective symptom-related remands also involved treating physician rule
issues. In twenty of these cases (9% of subjective symptom-related remands), the reviewing court
expressly found that the credibility analysis was erroneous as a result of treating physician rule
problems.346 Hence, while resolving treating physician rule problems has the clear potential to
reduce subjective symptom-related remands, it will not likely eliminate them.
As at the appellate level, district court judges in the Tenth Circuit do not require SSA
adjudicators to undertake a “formalistic” evaluation of each of the regulatory factors to be
considered as part of the subjective symptom evaluation.347 While this approach has been adopted
in at least one other district court opinion,348 not all courts agree. Three recent opinions from the
Eastern District of New York hold that an adjudicator must consider each of the seven credibility

39

factors, although none of these cases rely on Second Circuit precedent for support.349 Most district
courts do not explicitly require consideration of all seven factors, and our review of the case law
indicates that this is not an implicit requirement except where each of the factors is relevant to an
individual case. It may be that the Eastern District of New York is a special case.350
Magistrate judges initially decided the majority of subjective symptom-related remands
(about 70%), and a magistrate’s recommendations in these cases were rejected only twice (less
than 1% of the time).351 Notably, more than two-thirds of subjective symptom-related remands
involved a musculoskeletal impairment, and nearly half involved some form of depression,
anxiety, or similar mental health issue. Less than fifteen percent (15%) of sampled subjective
symptom-related remands involved either headaches/migraines or specific pain disorders such as
fibromyalgia.
Common bases for remand
Each of the common bases for remand identified at the appellate court level occurred in
between nineteen and twenty-nine percent (19-29%) of subjective symptom-related remands. All
but about fifteen percent (15%) of observed remands in the case sample were returned to SSA for
one of the common remand reasons (thirty-two of 222).352 In about half of subjective symptomrelated remands, only one of the common remand reasons was observed; in the rest, more than one
common remand reason was observed.
(1) Activities of daily living
About twenty-seven percent (27%) of subjective symptom-related remands in the district
court cases (sixty-one of 223) were premised on the adjudicator’s improper evaluation of the
individual’s activities of daily living. This remand reason was identified in at least one district
court in every circuit other than the Fifth Circuit and was the second most frequently observed
subjective symptom-related basis for remand at the district court level.
In some cases, the court found that the adjudicator mischaracterized the extent of the
claimant’s daily activities in finding his or her statements about subjective symptoms not to be
credible or not entirely credible.353 In other cases, the adjudicator failed to consider some of the
limitations on daily activities attested to by the claimant.354 Often, remands were attributable to
overreliance on the claimant’s ability to perform regular activities not comparable to substantial
gainful activity.355 For example, one case was remanded because the “activities upon which the
ALJ relies present no apparent inconsistencies with Plaintiff’s allegations [of pain]” and hence
should not have been relied upon in making an adverse credibility determination.356 Adjudicators
were criticized for failure to explain the perceived inconsistences they relied upon in discounting
the credibility of claimants’ statements about activities of daily living.357
(2) Absence of treatment
This remand reason was observed in at least one district court in every circuit, and was the
most frequently observed subjective symptom-related basis for remand at the district court level.
It was observed in twenty-nine percent (29%) of district court opinions with subjective symptomrelated remands (sixty-four of 223).

40

As at the district court level, this remand reason was used to identify cases where an
adjudicator premised an adverse credibility finding on the claimant’s decision not to pursue
available treatment. For example, one magistrate judge remanded a case in which the ALJ found
that a claimant was not credible because he did not lose weight and quit smoking, both of which
were necessary for him to undergo suggested surgery for his impairment.358 Among other findings,
the magistrate judge distinguished between recommended, rather than prescribed, treatment.359
Other cases rejected adverse credibility determinations as penalizing claimants for undertaking
conservative treatment, although at least one district court acknowledged Ninth Circuit precedent
that would support discounting a claimant’s testimony on such grounds.360
Still other opinions rejected ALJ decisions that did not show development of the record or
that ignored evidence that would explain the absence of treatment.361 In the words of one district
court judge, “the burden of proof is on the Commissioner to establish unjustified noncompliance
[with prescribed treatment] by substantial evidence.”362 Several remanded cases in the Ninth
Circuit cautioned “it may be problematic to draw an adverse inference from a failure to seek mental
health treatment.”363 This remand reason was also used to identify cases where the adjudicator
found an absence of treatment, but where there was record evidence of treatment.364
(3) Boilerplate / conclusory language
This issue was observed in at least one district court in every circuit other than the First,
and in twenty-five percent (25%) of sampled district court remands for reason of erroneous
credibility evaluation (fifty-six of 223).
A number of district court judges have adopted the Seventh Circuit’s criticism of
adjudicator reliance on language in the FIT. Nearly half of the more than fifty decisions rejecting
conclusory credibility findings specifically discussed reliance on “boilerplate” FIT language.365
Judges within the Seventh Circuit issued many of these decisions,366 but this criticism has also
percolated into some district courts in other circuits.367
As with appellate courts, district courts will not reject an opinion strictly for reliance on
boilerplate FIT language.368 Opinions described by this common remand reason are focused on
the paucity of analysis of subjective symptoms that this remand code represents.369 District courts
remand these cases because a thorough credibility analysis is “necessary to allow a court on review
to discharge its responsibility to ensure that the ALJ's opinion is supported by substantial
evidence.”370 Conference staff flagged this remand code whenever a reviewing court determined
that the discrediting opinion constituted the “forbidden conclusory statement” that a claimant is
not credible371 or otherwise failed to document any consideration of the required credibility factors
prior to determining the claimant’s ability to work.372
Chief Judge Marcia S. Krieger of the U.S. District Court for the District of Colorado offers
an articulate explanation of her concerns with describing the “specific evidentiary findings” the
ALJ must make “with regard to the existence, severity, frequency, and effect of the subjective
symptoms on the claimant's ability to work” as “credibility determinations.”373
Technically, the credibility assessment is as to particular testimony or statements. But this
characterization often improperly leads ALJs and claimants to focus upon whether the claimant is
believable or “telling the truth”. Such focus is reflected in ALJ references to the “claimant's
credibility” and claimants' umbrage on appeal at findings that suggest that they were untruthful.

41

Greater precision in distinguishing between the credibility of particular testimony as
compared to general credibility of a claimant is helpful for subsequent review. It is also worth
recognizing that determining the ontological truth or falsity of a claimant's statements is rarely
necessary. Indeed, the searching inquiry required of the ALJ assumes that the claimant experiences
a symptom that cannot be objectively documented -- pain, confusion, ringing in the ears, tingling,
nausea and the like. The focus of the inquiry need not be to determine whether the claimant is
truthfully reporting his or her experience, but instead to determine whether such symptom
corresponds to a severe impairment and whether its nature, intensity, frequency, and severity affects
the claimant's ability to work. Careful analysis results in factual findings supported by substantial
evidence.374

Her cogent concern helps also to explain why judges frequently invoke the next common reason
for remand: where an ALJ requires objective medical evidence to document subjective symptoms.
(4) Required objective medical evidence of subjective symptoms
This reason for remand was identified in approximately nineteen percent (19%) of district
court opinions with subjective symptom-related remands (forty-three of 222) and in at least one
district court under all but the First, Eleventh, and Fifth Circuits.
District courts are clear that at step two of the credibility analysis, after it is found that a
medically determinable impairment could reasonably be expected to produce a claimant’s
symptoms, it is inappropriate to reject a claimant’s statements about the intensity and persistence
of his symptoms “solely because they were not substantiated by objective medical evidence.”375
As one court found, it is logically inconsistent to discount a claimant’s testimony regarding the
impact of symptoms of an identified impairment for lack of supporting medical evidence once the
adjudicator has accepted that the underlying condition is a severe impairment.376
This remand code was also used to identify cases where the adjudicator failed to make
findings regarding subjective symptoms beyond an unfavorable comparison of allegations to
objective medical evidence.377 In some cases, an adjudicator may have an obligation to develop
the record prior to discounting a claimant’s subjective symptoms as being inconsistent with
objective medical evidence.378 In other cases, the ALJ may have failed to consider supporting
medical evidence (a remand reason on its own, as discussed further below).379 There are also cases
in which a claimant’s symptoms elude objective testing.380
A related but distinct reason for a remand identified at the district court level is the rejection
of medical evidence because it is based primarily on subjective symptomology (and sometimes on
an erroneous adverse credibility determination).381 This issue was observed in approximately five
percent (5%) of credibility-based remands, but may occur more or less frequently in cases that do
not cite SSR 96-7p or are not challenged because of an adverse credibility determination.
(5) Disregarded or rejected supporting medical evidence
This remand reason was observed in at least one court within every judicial circuit.
Reviewing district courts remanded cases for disregarding supporting medical evidence of
subjective symptoms in twenty-four percent (24%, fifty-four of 222) of sampled district court
credibility remands.
This remand reason was applied to cases in which medical or other evidence supporting
subjective symptom allegations was not considered by the adjudicator. 382 Examples of the types

42

of supporting medical and other evidence that must be considered when present383 include: clinical
findings,384 evidence of medical treatment or medication,385 and evidence of impediments to
medical treatment.386 Courts may also remand ALJ decisions that do not adequately consider
opinions on claimant credibility made by treating sources and consultative examiners.387 An
adjudicator may not selectively rely on some medical evidence while rejecting or failing to
consider other supporting medical evidence.388 Rejection of uncontroverted medical evidence
must be supported by substantial evidence.389
This remand reason was also used to identify cases where symptom evaluation was flawed
because supporting medical evidence should not have been rejected. For example, this remand
reason was occasionally observed in cases that were also remanded because of problems in
application of the treating physician rule and where the credibility evaluation was flawed as a result
of improper weighting of medical evidence.390
Specific findings in district courts
Unsurprisingly, circuit-specific precedent has percolated down into the district courts in
those jurisdictions. Analysis of cases with subjective symptom-related remands in the set of
sampled cases did not identify district court opinions in other circuits applying the circuit-specific
precedent previously identified.
Positive work history—Failure to consider a claimant’s positive work history when making
a credibility determination may provide a basis for remand in district courts in the Second, Third,
and Eighth Circuits.391 However, district courts in the Fourth and Fifth Circuits have expressly
declined to follow this view of the significance of a “good work record.” 392 Also as at the circuit
court level, some district courts will consider a solid work history one of many factors in a
credibility evaluation.393
Credit-as-true rule and remands with awards—District courts in the First and Tenth
Circuits have declined to adopt the credit-as-true rule.394 It is applied by district courts in the Ninth
and Eleventh Circuits. In courts whose decisions are appealed to the Ninth Circuit, the credit-astrue rule was addressed in about half of remanded cases (twenty-six of fifty-five total remands).
In those whose decisions appealed to the Eleventh Circuit, the rule was addressed in less than a
quarter of remanded cases (four of seventeen). Intercircuit comparisons are inappropriate given
the sampling methodology, and differences in observed frequencies of cases applying the creditas-true rule may be a result of limited sampling. However, review of the case law indicates that
this discrepancy may be jurisprudential. In district courts in the Eleventh Circuit, the credit-astrue rule is not applied when the opinion below improperly discounts the credibility of statements
but where the adjudicator “substantially complied with the regulations.”395 In district courts in the
Ninth Circuit, the rule is applicable when the lower opinion fails to provide “specific, clear, and
convincing reasons” for an adverse credibility determination.396 Notably, a number of cases in
both jurisdictions identified a problematic subjective symptom evaluation but did not discuss the
credit-as-true rule.
In the entire sample, only twenty-six remands were made with awards, twenty-three in
cases attributable to problematic subjective symptom evaluation. The credit-as-true rule led to a
subjective symptom-related remand with an award in eleven cases in district courts under the

43

jurisdiction of the Ninth Circuit, which is twenty percent (20%) of remands in that jurisdiction.
No district court cases awarding benefits due to application of the credit-as-true rule were
identified in sampled cases in the Eleventh Circuit, although several cases discussed the rule. Five
awards were made by a single judge in the Western District of New York, which does not follow
the credit-as-true rule.397
Bias—As noted above, SSA recently settled class-action litigation in the Eastern District
of New York to address allegations of bias in credibility and disability determinations.398 Knowing
of this alleged relationship, and also of bias complaints arising at the administrative level,
Conference staff reviewed cases with subjective symptom-related remands with an eye towards
identifying potential bias.399 Only one district court opinion in the sample remanded an ALJ
opinion due to biased credibility evaluation, although a few other cases raised questions regarding
the behavior of an ALJ, findings in this area were largely negative.400 Since we know allegations
of bias to be an issue at the administrative level, this negative finding may indicate that the agency
is successfully addressing bias concerns internally through an administrative process involving
investigation of bias claims by ODAR’s Division of Quality Service.401
E.

Case law conclusions

SSA regulations require that an adjudicator, having determined that the claimant has one
or more medically determinable impairment(s) that could reasonably be expected to produce pain
or symptoms (step one of the symptom evaluation process), consider objective medical evidence
and other evidence in evaluating the intensity and persistence of those subjective symptoms (step
two of the process).402 The common remand reasons identified through case law research arise
because of ALJ analysis at step two of the symptom evaluation process.
In some cases, a claimant’s complaints of subjective symptoms may be fully substantiated
by objective medical evidence. Consideration of objective medical evidence is central to
determining whether this is the case, and courts have remanded ALJ decisions that disregard or
inappropriately reject supporting medical evidence. An adjudicator’s failure to consider objective
medical evidence is a clear example of regulatory implementation problems, because the
regulations direct adjudicators to consider it in reaching a conclusion about whether a claimant is
disabled.403 Purportedly inappropriate rejection of evidence is a thornier issue. It is worth
highlighting that a significant number of remands by circuit and district court observed in our case
law review—forty-five percent and more than half, respectively—occur because of problems in
weighing medical evidence due to misapplication of the treating physician rule. In twenty percent
of the sampled remanded cases, the court found that the subjective symptom evaluation was
erroneous because of treating physician rule problems. We have previously offered SSA principles
to guide its regulatory efforts to improve evaluation of medical evidence under the treating
physician rule, and taking action on these prior recommendations may help SSA to improve
adjudicator’s subjective symptom evaluations as well.404
In other cases, “symptoms sometimes suggest a greater severity of impairment than can be
shown by objective medical evidence alone.”405 SSA “will not reject [a claimant’s] statements
about the intensity and persistence of [] pain or other symptoms or about the effect [] symptoms
have on [a claimant’s] ability to work (or if [] a child, to function independently, appropriately,
and effectively in an age-appropriate manner) solely because the available objective medical

44

evidence does not substantiate [the claimant’s] statements.”406 Requiring objective medical
evidence of subjective symptoms was another commonly observed reason for remands at the
district and circuit court levels of judicial review, and is another clear example of problematic
application of existing regulations.
The remaining commonly observed remand reasons relate to the specific analysis that the
courts and now SSA require the agency to consider in evaluating “other [non-objective medical]
evidence” of subjective symptoms.407 In some cases, ALJs fail to adequately articulate the
reasoning behind a credibility determination, and rely on boilerplate or conclusory language rather
than explaining how they considered other evidence offered by the claimant in support of his or
her claim. The common remand reasons also indicate that courts frequently take issue with the
way ALJ’s evaluate a claimant’s 1) activities of daily living408 or 2) approach to treatment of
symptoms.409 Here too, courts are concerned with ALJs’ implementation (or lack thereof) of the
agency’s regulations. Taken together, these common remand reasons highlight specific areas in
which the agency could improve adjudicator evaluations of subjective symptoms at step two of the
regulatory symptom evaluation process.
VI.

EXTERNAL PERSPECTIVES ON SSA’S EVALUATION OF CLAIMANTS’ SYMPTOMS

Given the controversial history of subjective symptom evaluation, and the frequency with
which this issue contributes to judicial and Appeals Council remands, one might expect to find
healthy body of academic literature, congressional activity, and stakeholder engagement on the
subject. The reality is that public attention to this topic in recent years has been relatively minimal.
A.

Academic literature

Much of the academic literature focuses on specific disorders,410 or pain generally,411 rather
than how pain or subjective symptoms are considered in the disability adjudication context. An
important exception is a 2001 article in Journal of Health Law by Elizabeth Schneider and Joseph
Simeone discussing pain and disability under social security. It calls for new regulations for
evaluating pain claims.412 The authors base their argument on a perceived inconsistency in
treatment of pain claims amongst federal circuit courts regarding whether a claimant must
“produce medical evidence of a relationship between the impairment and the severity of the
pain.”413 They distinguish between courts that do not require such evidence and those in which
“there must be medical findings to support subjective complaints of pain.” The authors rely
primarily on case law from the 1990s or earlier in drawing this distinction.414 This question
appears, however, to have been settled by SSR 96-7p, which clarifies that “an individual's
statements about the intensity and persistence of pain or other symptoms or about the effect the
symptoms have on his or her ability to work may not be disregarded solely because they are not
substantiated by objective medical evidence.”415 Although the authors briefly mention that recent
case law has dealt with ALJ non-compliance with SSR 96-7p and conclusory credibility
evaluation, they do not identify SSA’s resolution of this issue. As discussed above, adjudicator
failure to comply with SSR 96-7p’s directive on objective medical evidence continues to be a
common basis for remand in some appellate and district courts.

45

A few articles in the literature relate to bias in disability adjudications and identify
credibility evaluation as an area where adjudicator bias may manifest. A recent article by Professor
Pashler focuses on the stigma obese claimants face and suggests that implicit bias associated with
this stigma can lead to inadequate record development. He suggested that involving adjudicators
in the creation of objective protocols to question claimants and develop the record about whether
stigmatized disorders are disabling “might minimize the risk that the ALJ's implicit bias could
surface when making the credibility findings.”416 The late Clara Dworsky, former chair of the
American Bar Association’s Social Security Law and Practice Committee, also suggested that bias
can enter into credibility evaluations. She cited an example from her own practice experience in
which an ALJ made an adverse credibility determination because the claimant was “‘an obese
woman with AFDC and HUD as her sources of income’ and [because] her ‘primary motivation
was to eat her way onto the disability rolls.’”417 Ms. Dworsky explained that this violates SSR 967p, which prohibits adjudicators from making credibility determinations based on intangible,
intuitive notions. She further cited judicial precedent clarifying that adjudicator speculation about
a claimant’s financial motivation based on information about earning records, sporadic work
history, or receipt of welfare payments “has no connection with testimony concerning the
frequency and severity of subjective symptoms.”418 As these examples show, bias can manifest in
credibility evaluations through inadequate record development and inappropriate consideration of
factors that are irrelevant to the limitations imposed by a claimant’s subjective symptoms.
Another extreme example of bias in the literature was identified in a student note in the
Cornell Law Review. It describes litigation alleging bias by an individual ALJ who evidently
viewed subjective symptom evaluation as an opportunity to identify “no-goodniks.”419 The note
documents both witness testimony as to biased credibility evaluations and statistical evidence
indicating that this ALJ had, in at least sixty-nine individual cases, “unlawfully determined that
the claimant was not credible.”420 After a complicated procedural history that culminated in classaction litigation by claimants to whom this judge had denied benefits, the U.S. District Court for
the Middle District of Pennsylvania found that the ALJ “harbored biases which rendered him
unable to fulfill his duty to develop the facts and to decide cases fairly” in violation of the plaintiffs’
rights to full and fair hearings and decisions based on substantial evidence.421 In rendering this
opinion, the court overruled an exculpatory inquiry of the issue undertaken by SSA, finding that it
was not supported by substantial evidence and improperly discredited and disregarded
corroborating testimony.422 The allegations of bias described in this note, as well as in the Pashler
and Dworsky articles, bring to mind those made in Padro v. Colvin, the recent class-action lawsuit
settled in the Eastern District of New York.423
B.

Congressional and oversight authorities

Congressional oversight of SSA takes many forms, in part due to jurisdiction over the
agency by a number of different committees and subcommittees.424 SSA’s activities are also
scrutinized by the Congressional Research Service, the Government Accountability Office, and
SSA’s own Office of the Inspector General. A comprehensive review of publications by each of
these oversight entities was not feasible. Rather, Conference staff conducted key word searches
of the websites of: the House Ways and Means Committee’s Subcommittee on Social Security,
the Senate Finance Committee, the Government Accountability Office, and the Social Security
Office of Inspector General.425 Supplemental research was conducted on congressional hearings

46

relating to social security disability adjudication. This methodology identified only a few
oversight materials or witness statements relevant to credibility or subjective symptom evaluation,
almost all of which discussed subjective symptom evaluation descriptively or in passing.426 Since
the 1984 amendments to the Social Security Act—which expired without adoption of a new
statutory standard for the evaluation of subjective symptoms—the subject has not garnered much
congressional attention.
The Minority Staff Report of the U.S. Senate’s Permanent Subcommittee on Investigations
on Social Security Disability Programs: Improving the Quality of Benefit Award Decisions is
perhaps the most notable of the identified congressional materials.427 Tellingly, its 2012 findings
with respect to credibility evaluation are negative. The report is based on Committee staff review
of 300 case files for disability beneficiaries. The report concluded that there were errors in about
one in every four of these decisions and sought to identify repeat problems in decisionmaking. It
examined the award of benefits bearing in mind SSA-identified common bases for remand of
unappealed hearing decisions, including credibility evaluation.428 However, only two cases were
identified (fewer than 3% of purportedly problematic decisions) in which benefits were awarded
and credibility analysis was found to be erroneous—in both instances due to the ALJ’s failure to
discuss evidence questioning credibility.429 As a result, and although the Minority Staff Report
made several concrete recommendations for improving the social security disability determination
process, such as focused training for ALJ’s, the report did not offer specific advice for improving
subjective symptom evaluation. Former Senator Coburn and his staff continued to examine issues
surrounding subjective symptom evaluation, such as the utility of symptom validity testing, and
also called for focused training for ALJs regarding adequate articulation of legal determinations.430
In December 2014, just prior to leaving office, Senator Coburn introduced legislation that would
permit ALJs to acquire and consider symptom validity tests and information from publicly
available social media in evaluating the credibility of an individual’s medical evidence.431
C.

Stakeholder perspectives

While this report has focused on SSA’s decisionmaking process, a study of the evaluation
of a claimant’s subjective symptoms would be incomplete if it did not also explore the perspectives
of claimants (through their representatives) and adjudicators (including ALJs and disability
examiners). A review of organizational websites did not identify analyses or advocacy pieces
specific to subjective symptom or credibility evaluation.432 To some extent, these perspectives can
be inferred from positions taken in agency or judicial proceedings. However, such positions are
offered within the existing framework for agency decisionmaking and may not present the full
picture.
In order to better understand stakeholder views, including whether the existing process
should be changed, Conference staff developed a short questionnaire soliciting feedback on SSA’s
existing regulations and policy guidance for subjective symptoms and claimant credibility
evaluation. This questionnaire was distributed to two prominent claimant representative
organizations—the National Association of Disability Representatives (NADR) and the National
Organization of Social Security Claimants’ Representatives (NOSSCR)—and two ALJ
organizations—the Association of Administrative Law Judges (AALJ)433 and the Federal
Administrative Law Judges Conference (FALJC)434—as well as the National Association of
Disability Examiners (NADE) and the American Bar Association (ABA). Organizational
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responses are included as an attachment to this report in Appendix G: Stakeholder
Questionnaire Responses. We are grateful for the participation and feedback of each of these
organizations.
Helpful feedback was also provided by the National Council of Disability Determination
Directors (NCDDD) in the form of relevant prior testimony and responses to questions of record
in Congress.435 The FALJC did not provide an official response to the questionnaire, but did
transmit personal opinion responses from three individual judges. As FALJC noted in transmitting
these materials, these responses do not reflect the views of the organization as a whole. Individual
ALJ responses were at times divergent; hence they are discussed individually below. We are
thankful for these resources and opinions as well.
In general, surveyed organizations did not believe that changes are required in SSA’s
existing regulations (20 C.F.R. §§404.1529, 416.929) or current sub-regulatory guidance in SSR
96-7p for the evaluation of a claimant’s subjective symptoms.436 In the words of NOSSCR:
We believe that the current regulations and policies provide adequate detailed guidance for
adjudicators and the public, allowing for accurate decision-making. They are measured and
extensive, having been developed after years of comment and deliberation by SSA. The policies
are sufficiently flexible to allow for application when a claimant’s circumstances change. 437

NADR commented that “[e]stablished rules provide a solid framework for evaluating pain,” but
also noted that the current rules and policy rulings “do not explicitly require specific findings”
about claimant’s symptoms.438 NADE observed that subjective symptom evaluation “is a
challenging issue for adjudicators to address, considering the degree of subjectivity that is usually
involved. The guidance does provide the tools for adjudicators to make a fair assessment.”439
The AALJ, NOSSCR, and NADR agreed that opportunities exist to improve policy
implementation and administration (the ABA did not offer specific comments on this subject).440
Implementation was of particular concern to the claimant representative organizations. NADR
expressed concern that SSR 96-7p is not being followed and that resultant improper credibility
evaluations deprive claimants of due process. NOSSCR suggested that “additional training or
‘reminders’ about the guidance provided in the regulations and SSRs would be useful…. It is
critical that SSA provide adequate support and guidance to adjudicators regarding the application
of its policies for evaluation of symptoms, including pain.”441 The AALJ and NADE urged SSA
to ensure that adjudicators have sufficient time to review all of the evidence and to develop the
record, where necessary. NADE commented that with “many adjudicators experiencing increased
workload demands . . . claimant credibility may not [always] be given the due consideration it
deserves.”442
Both claimant representative organizations observed some of the common bases for
remand that Conference staff independently identified through case law research. NADR and
NOSCR noted that adjudicator reliance on boilerplate or conclusory language in lieu of making
specific findings is a problem, and NOSSCR also observed that the courts have taken issue with
FIT language and the assessment of RFC before evaluation of subjective symptoms. NADR
advised disallowing the use of the FIT language altogether and expressed concern that adjudicators
“routinely discredit allegations of pain.”443 Adjudicator evaluation of daily activities and treatment
under the regulations and policy rulings also drew criticism. NADR suggested that SSA provide
adjudicators with realistic scenarios to consider in assessing pain, such as those that recognize that
because “someone goes out to eat, vacuums a small apartment, or does their own laundry does not

48

mean they do not have debilitating pain.”444 NOSSCR identified an example where an adjudicator
drew an adverse credibility inference based on a claimant’s failure to seek regular medical
treatment, without explicitly considering the claimant’s explanation that he was unable to afford
treatment. NADR stated that limitations in access to medical treatment for some claimants—
particularly the indigent, uninsured, or underinsured—may result in discredited allegations of pain.
NOSSCR felt that record medical evidence was not always accounted for; according to its review
of case law, “the most frequent reason for [] remands is the ALJ’s failure to articulate supported
and valid reasons for rejecting or discounting medical evidence from treating sources.”445
While SSA data and staff research did not identify lay evidence or third party credibility
issues as frequent reasons for remand, these issues were raised by both claimant organizations.
NADR and NOSCRR expressed concern that lay or third person evidence and statements are given
less weight than deserved. Each emphasized the value such evidence can provide, NADR where
the claimant does not have access to healthcare and NOSSCR where it provides “key information
needed to establish the individual’s functional limitations.”446 An individual ALJ expressed
concern for potential abuse of third party evidence, when testimony by claimant’s family members
or friends is not given under oath or, if written, is not provided as an affidavit.447
NADE, NADR, and the AALJ commented on the need for greater development of medical
evidence in the evaluation of subjective symptoms. NADR suggested that SSA’s guidance on the
use of pain specialists or pain centers as consultative examiners should be further explained to
clarify when a consultative examination for pain is warranted. The AALJ thought that SSA should
either require documentation of functional limitations by a claimant’s treating sources or pay for
a complete physical/functional capacity evaluation. NADR stated that more time should be
provided for consultative musculoskeletal and neurological consultative examinations and that
more weight should be afforded to psychological evaluations identifying pain behavior. The AALJ
and one individual ALJ suggested that SSA should permit adjudicators to order psychological tests
that shed light on malingering or symptom exaggeration.448 NADR suggested that medical studies,
such as one on the frequency of migraines, could provide greater insight on whether pain
allegations are reasonable. At the DDS level, NADE said that “[s]ometimes additional
clarification can make a difference in the outcome of the claim” but also expressed concerns about
the extra time required to develop the record in such cases when “[m]any adjudicators are under
high production demands.”449
Stakeholders provided some feedback on agency forms and decisionmaking tools. NADE
offered feedback on the presentation of information regarding subjective symptom evaluation in
the eCAT tool, discussed in greater depth in Appendix C: The Electronic Claims Analysis Tool.
NADR provided a number of specific ideas relating to the use of forms or questionnaires in pain
evaluation. It suggested that, at the DDS level, the existing pain questionnaire should include
questions about how pain affects the claimant’s concentration, need to change positions, and sleep.
More generally, NADR stated that SSA should require pain questionnaires and should consider
asking about and evaluating pain early in the disability determination process. However, NADR
recommended replacing or amending the existing form pain/function report used by SSA, due to
the perception “that this report is constructed in a way that encourages people to give answers
Social Security will later use against them.”450 The AALJ expressed concern that claimants do not
complete pain questionnaires or forms that detail the nature, extent, and severity of subjective
symptoms and the functional limitations that symptoms impose. NADE commented that claimant

49

statements on the agency’s disability and function report forms are at times “vague or misleading”
and that additional clarification can sometimes “make a difference in the outcome of the claim.”451
NADE also emphasized the evidentiary value of observations made by SSA Field Office
personnel.
Finally, the AALJ suggested that providing ALJs and staff with access to social media sites
and arrest and conviction records could aid judges in the assessment of subjective symptoms and
resulting limitations by bringing to light “relevant information” on the alleged disability. This
view was shared by one ALJ in a personal response that expressed concern of reprisal against an
ALJ who attempts to obtain such information.452 Another individual ALJ asserted that
“[s]tatements by ex-cons, alcoholics, and drug addicts are inherently unreliable” but did not
explicitly support access to external criminal or other records.453 The AALJ expressed its view
that vigorous questioning of claimants and witnesses by adjudicators should be allowed “without
threats of counseling or disciplinary action for being ‘biased’ or ‘impolite.’”454
Taken together, the substantive stakeholder responses indicate that: opportunities exist to
improve implementation of subjective symptom evaluation, claimants have concerns with several
of the common bases for remand, and diverse interests are advocates for additional resources and
record development (especially of medical evidence), although supported approaches may vary.455
VII.

RECOMMENDATIONS

The purpose of this effort is to advise SSA on how to best articulate the scope of symptom
evaluation in its adjudication process, so as to: improve consistency in disability determinations,
reduce complaints of bias and misconduct against SSA ALJs, and reduce the frequency of Appeals
Council and judicial remands involving symptom evaluation. To this end, the report offers SSA
the Office of the Chairman’s recommendations concerning potential improvements in the language
SSR 96-7p and implementation of the regulatory standards.
A.

Statutory and regulatory revisions

As the case law and stakeholder feedback illustrate, the existing subjective symptom
regulations are generally well regarded.456 The major problem appears to be implementation of
existing regulations. Hence, the Office of the Chairman is not recommending that SSA consider
changes to the agency’s two-step approach to the evaluation of subjective symptoms or the
regulations at this time. However, a few statutory and regulatory housekeeping changes are
advisable.
1. SSA should seek the removal of the expired pain or other symptom provision,
indicated in strikethrough text below, of the Social Security Disability Benefit Reform
Act of 1984 from 42 U.S.C. Section 423(d)(5)(A).
As discussed above, this provision applied “only to determinations made prior to January
1, 1987.” 457 The current codification contains no explanatory note identifying the sunset provision
and might create confusion about the actual law even for sophisticated or legally trained code
consumers. The Code should read:
50

42 U.S.C. § 423 – Disability insurance benefit payments
…(d) “Disability Defined”
…(5)(A) An individual shall not be considered to be under a disability unless he furnishes such
medical and other evidence of the existence thereof as the Commissioner of Social Security may
require. An individual’s statement as to pain or other symptoms shall not alone be conclusive
evidence of disability as defined in this section; there must be medical signs and findings,
established by medically acceptable clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that results from anatomical, physiological, or psychological
abnormalities which could reasonably be expected to produce the pain or other symptoms alleged
and which, when considered with all evidence required to be furnished under this paragraph
(including statements of the individual or his physician as to the intensity and persistence of such
pain or other symptoms which may reasonably be accepted as consistent with the medical signs and
findings), would lead to a conclusion that the individual is under a disability. Objective medical
evidence of pain or other symptoms established by medically acceptable clinical or laboratory
techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a
conclusion as to whether the individual is under a disability. Any non-Federal hospital, clinic,
laboratory, or other provider of medical services, or physician not in the employ of the Federal
Government, which supplies medical evidence required and requested by the Commissioner of
Social Security under this paragraph shall be entitled to payment from the Commissioner of Social
Security for the reasonable cost of providing such evidence.

This problem is compounded when the statutory standard is incorporated by reference. For
example, regulations of the U.S. Department of Housing and Urban Development for the Section
8 and Public Housing Assistance programs—funded by Congress at nearly thirty billion dollars
for FY 2014458—define disability in part by reference to 42 U.S.C. Section 423.459
The expired statutory standard has been generally incorporated into SSA’s regulatory
standards for the evaluation of subjective symptoms, which have been accepted by the courts and
are well regarded by stakeholders. Nonetheless, the congressional standard is of historical interest
and of guidance value, and so we encourage SSA to work with the Office of the Law Revision
Counsel of the U.S. House of Representatives to include an appropriate editorial note containing
the expired text.

2. SSA should consider clarifying a potential inconsistency in its regulations on What is
Needed to Show an Impairment, at 20 C.F.R. §§ 404.1508, 416.908.
The regulations state:
If you are not doing substantial gainful activity, we always look first at your physical or mental
impairment(s) to determine whether you are disabled or blind. Your impairment must result from
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 (see § 404.1527). (See § 404.1528 for further information about
what we mean by symptoms, signs, and laboratory findings.) 460

These rules were adopted in 1980, prior to the 1991 codification of the current approach to
subjective symptom evaluation.461 In the 1980 Federal Register notice adopting the regulation,
SSA recognized in response to comments that a “history of symptoms, recorded in a clinical
setting, is important to the evaluation of disability.”462 Also in response to comments, SSA
included the cross-reference to the second regulatory provision containing more information, titled
Symptoms, Signs, and Laboratory Findings. It states:

51

Symptoms are your own description of your physical or mental impairment. Your statements alone
are not enough to establish that there is a physical or mental impairment. 463

It is incongruous to define symptoms as a claimant’s own description of his or her impairment
while also identifying them as medical evidence, without further clarification.
The simplest regulatory fix would be to strike “symptoms” from the list of types of medical
evidence that can be used to establish an impairment, but to keep the last clause stating that an
impairment cannot be established “only by your statement of symptoms.” This solution, however,
would not explicitly honor SSA’s recognition—both in responding to comments on the 1990
adoption of this rule and in the inclusion of pain as a diagnostic criterion in many of the
impairments identified in the listing of impairments in Appendix I—that symptoms can contribute
to the establishment of an impairment. Hence, a more nuanced approach might be warranted, but
should be considered in light of the full set of regulations and policy rulings, including the rules
for subjective symptom evaluation and SSRs 96-3p, 96-4p, and 96-7p. Any proposed regulatory
fix to this perceived inconsistency would be subject to the notice-and-comment rulemaking
procedures of the Administrative Procedure Act.464
B.

Policy recommendations
1. SSA should consider amending SSR 96-7p to clarify that subjective symptom
evaluation is not an examination of a claimant’s character but rather is an evidencebased analysis of the administrative record to determine whether the nature,
intensity, frequency, or severity of symptoms impact the claimant’s ability to work.

The evaluation of credibility undertaken by SSA’s adjudicators at all levels of review is, to
put it simply, quite unlike credibility evaluations often made and reviewed in many other judicial
contexts. Courts are ordinarily highly deferential to credibility determinations made by finders of
fact, to give “due regard” to the fact-finder’s observations and judgment of a witness’ credibility.
In contrast, for every five appellate and district court cases remanded to the SSA, one is returned
due to a judicial finding of problematic adjudicator analysis of a claimant’s credibility in the
context of subjective symptom evaluation. This raises questions about the level of deference
federal judges actually afford to SSA’s administrative credibility findings and the appropriateness
of using the term “credibility” to describe the agency’s or the court’s evaluation of subjective
symptoms.
One possible explanation for the frequency of credibility-related remands of social security
disability cases is the ordinary remedy of returning the erroneous benefits determination to the
agency for reconsideration. Subsequent administrative process to reassess credibility avoids due
process concerns that might be raised, and indeed have been raised by six courts of appeals, where
credibility determinations are overturned by federal courts without a new evidentiary hearing.
(This is not to say that the availability of this remedy justifies a lack of deference to the
Commissioner’s decisions regarding subjective symptom complaints; the law is clear that
Commissioner’s decision is to be affirmed unless unsupported by “substantial evidence.”)

52

Another possible explanation, offered by Chief Judge Krieger of the U.S. District Court for
the District of Colorado, is that adjudicators are not actually being called upon to evaluate
“credibility” in most social security cases. The administrative evaluation of subjective symptoms
that the agency’s adjudicators often undertake in nonadverserial proceedings differs from the
ordinary evaluation of a witness’s credibility—with its emphasis on the witness’s character for
truthfulness and especially demeanor while testifying—that occur in other contexts. To offer a
comparative example, the Federal Rules of Civil Procedure clearly place great weight on the fact
finder’s personal observations about witnesses by requiring that they be upheld on appeal unless
clearly erroneous.465
In contrast, at the initial and reconsideration levels of the administrative process, field
officers rather than DDS decisionmakers make in-person observations, if any. Hearings allow
adjudicators at the hearing office level to directly observe claimants, but nonetheless SSR 96-7p
provides that credibility findings at all levels of review may not be based on “an intangible or
intuitive notion” or personal observations alone. This aspect of administrative policy has clear and
longstanding judicial origins, including in the Polaski class-action litigation over subjective
symptom evaluation. Rather, subjective symptoms are to be evaluated after thorough
consideration of record evidence in light of the Polaski-turned-regulatory factors. Judicial review
of these findings involves close scrutiny of their evidentiary basis to determine whether the
regulatory analysis was appropriate.
The description of subjective symptom evaluation as credibility evaluation may have
judicial origins, but it is not anchored in the current regulations for the evaluation of subjective
symptoms. The requirement for an evaluation of credibility is found in SSR 96-7p. It is not
contained in the Social Security Act or in SSA’s implementing regulations, which require only an
evaluation of the “intensity and persistence of your symptoms so that we can determine how your
symptoms limit your capacity for work.”
Moreover, some commentators have raised serious concerns regarding the potential for
bias in the evaluation of a claimant’s credibility, including in cases where an ALJ fails to develop
the record (a common remand reason in sampled cases citing SSR 96-7p) or relies on extraneous
information in decisionmaking. While administrative allegations of bias at the hearing office level
appeared to be relatively rare based on FY 2011 data, when they were raised with the Division of
Quality Service in less than one percent (1%) of ALJ adjudications, they nonetheless involved
forty percent (40%) of SSA’s ALJ corps. Data suggest that between four and twenty percent (420%) of these claims (involving an unknown number of adjudicators) may have been capable of
substantiation if fully analyzed and documented. Little is known about the connection between
these complaints and credibility evaluation, but a handful of sample bias referrals provided by
SSA, the academic literature, one sampled district court case, and the Padro v. Colvin class-action
litigation demonstrate that there are examples in which such a relationship exists.
We are concerned that the current description of subjective symptom evaluation as
credibility evaluation, though not wrong, may invite adjudicators to examine a claimant’s character
or inquire into other matters that are not essential—and indeed may be irrelevant—to the
evidentiary determination of whether the nature, intensity, frequency, or severity of these
symptoms impacts the claimant’s ability to work, particularly where the evaluation is of symptoms
that are unsubstantiated by objective medical evidence. As Judge Krieger points out, claimants
are likely to “take umbrage” with adverse credibility determinations “that suggest that they were
53

untruthful.” The implementation of this recommendation may well reduce perceptions and
complaints of bias arising from subjective symptom evaluation. It would also resolve judicial
concerns with template language describing a claimant’s statements as “not entirely credible.”
This is not to say that an evaluation of a claimant’s credibility—including those partially based on
consideration of personal (or, at the DDS level, field office) observations or made by medical
professionals—should play no role in the evaluation of subjective symptoms, but rather to clarify
that credibility (as commonly understood) is not the central inquiry.
Accordingly, SSA should consider amending SSR 96-7p to clarify that subjective symptom
evaluation is not an examination of a claimant’s character. We recommend that the agency instead
more closely follow the regulatory language, which directs adjudicators to consider medical and
other evidence to “evaluate the intensity and persistence of [an individual’s] symptoms so that
[SSA] can determine how [the individual’s] symptoms limit [his or her] capacity for work or, if
[he or she is] a child, [] functioning.” SSA could use this revision as an opportunity to offer
guidance to its adjudicators on the specific regulatory implementation problems courts have
identified.466
SSA should also consider revising related documentation, such as in POMS or HALLEX,
and adjudicative tools including FIT, eCAT, and successor technologies, to avoid describing
subjective symptom evaluation as a determination of the claimant’s credibility. Revising these
tools may help to focus attention on the question of the extent to which the evidence indicates that
a claimant’s subjective experience of symptoms contributes to his or her impairment or limits the
capacity to work or function.
2. SSA should examine opportunities to improve administrative record development
where evaluation of subjective symptoms is required for a disability determination.
Stakeholders, particularly disability examiners and ALJs, agreed that record evidence can
help adjudicators to evaluate the limitations, if any, imposed by a claimant’s impairments and
symptoms. The agency has a range of tools adjudicators could use to develop the record, such as:
requests for additional information from treating sources, consultative examinations (including by
pain specialists), and DDS form questionnaires about pain and functional limitations. However,
stakeholders provided a number of specific comments raising concerns about the availability or
application of these tools, and a number of quality review cases and remands cited inadequate
record development, particularly with respect to treatment. It appears that these tools are
insufficiently utilized in some cases. Agency adjudicators feel constrained by resource and record
limitations, including those induced by production goals. SSA should evaluate whether changes
in internal agency directives, procedures, or forms are needed in light of this stakeholder, quality
review, and judicial feedback.
Some Members of Congress and the AALJ have questioned SSA’s decision to prohibit
adjudicators from procuring symptom validity tests. We lack the expertise necessary to offer
advice on this decision, and particularly on the weight such tests should be afforded or on the
training that should be provided to adjudicators if the prohibition is lifted. We understand that
SSA has engaged the Institute of Medicine at The National Academies to perform a critical review
of symptom validity tests, as well as to offer guidance on their relevance and use in the context of
disability determinations.467
54

Similarly, SSA may wish to engage experts to study and guide any revisions to its
questionnaires or forms for gathering information about claimants’ subjective symptoms and
functional limitations.468 NADR in particular made a number of suggestions regarding the use of
pain and function questionnaires, which typically occurs at the DDS level. The organization
offered a potential explanation for why, as the AALJ noted, claimants may be reluctant to complete
such forms, or, as NADE noted, to complete them with specificity—fear that their answers will
later be used against them. NADR suggested that form construction contributes to this concern.
If SSA is able to confirm this concern, addressing it may improve response rates. Ensuring that
questionnaires and other tools available for record development are used early in the adjudication
process has the potential to improve the quality of decisionmaking at the state and federal
adjudicative levels, as well as to bolster the administrative record for decisionmaking.
The Office of the Chairman is not, at this time, recommending that SSA permit adjudicators
to develop the record using social media, criminal record history, or other similarly extraneous
tools. Although we understand that some individuals plausibly believe that these resources could
provide valuable information about a claimant’s credibility, we have already suggested that SSA
should move away from treating subjective symptom evaluation as a character evaluation. We
recognize that some tools may well provide adjudicators with information about the functional
limitations a claimant suffers, but we share SSA’s due process concerns where such information
is potentially falsifiable, may be difficult to corroborate, or may be viewed out of context or with
limited description.469 For example, it may be difficult to verify when photographs of a claimant
were taken and hence to know whether they support or conflict with ongoing claims of functional
limitation. Such evidence could counter a claim of limitations and hence be of probative value,
but it would also be possible for a claimant to offer false or manipulated photographs or online
postings to support a claim for benefits. While it is true that a claimant could be asked about such
evidence where an in-person hearing is held at the hearing-office level of review, investigations
into the veracity of such resources may be difficult at the DDS level or in the absence of an
adversarial hearing process. Moreover, SSA’s resources for record development are limited, and
agency adjudicators already feel constrained by resource limitations.
3. ODAR should revise the Findings Integrated Template program, or successor
technologies, to prompt hearing level adjudicators evaluating subjective symptoms to
consider the applicability of each the regulatory factors as well as to explain the
influence of applicable factors on the decision.
At the initial and reconsideration levels, the eCAT tool already prompts decisionmakers to
consider each of the regulatory factors in evaluating subjective symptoms, where appropriate.
Where symptom evaluation occurs, adjudicators are also required to provide a narrative
explanation of their overall assessment, regardless of their conclusions about how subjective
symptoms affect the individual’s functional limitations and restrictions. Although data is not
presently available to permit the Office of the Chairman to evaluate use of these tools by DDS
decisionmakers, the agency’s efforts to prompt consideration of the regulatory factors and
articulation of the decision rationale at the initial and reconsideration levels are nevertheless a
model for the hearing office level of administrative review.
At the hearing office level, as former Commissioner Astrue has testified, use of FIT
software has not only improved the quality of written decisions but has also reduced processing
55

time for claims (and therefore claimants). ALJs have found that the templates improve the quality
of their decisionmaking and help them to review and edit decisions more quickly. Despite these
benefits, adjudicator reliance on the Findings Integrated Template language on credibility has
drawn the criticism of federal judges. Judicial criticism centers on adjudicator failure to clearly
articulate the reasoning underlying a finding that a claimant’s statements regarding his or her
subjective symptoms are not credible or not entirely credible.
We are reluctant to recommend that SSA forego the administrative benefits of FIT use in
response to judicial feedback based on review of a marginal percentage of cases administered by
the agency, but we agree that further revisions to template language are warranted. SSA’s present
FIT guidance to adjudicators and decision writers directs them to “evaluate each allegation in light
of the objective medical evidence and other evidence regarding the relevant factors listed in the
symptoms regulations and SSR 96-7p.”470 Evidently, more specific direction is necessary.
ODAR should revise its FIT program to specifically enumerate each of the regulatory
subjective symptom evaluation steps and factors, where applicable, and to prompt adjudicators
and decision writers to select whether each regulatory factor is relevant to the evaluation. ODAR
should capture this information as structured data. We recognize that requiring adjudicators to
“check boxes” as part of the decisionmaking process could draw objections from critics who
believe that SSA’s ALJs are already overreliant on the agency’s templates. Nonetheless, we
believe that the benefits of structured data capture, including in the large volume of cases that are
not appealed to federal court, outweigh this potential disadvantage.
At the hearing level, where an agency decisionmaker indicates that one of the enumerated
regulatory factors factored into his or her subjective symptom evaluation, the adjudicator should
be prompted to articulate his or her reasoning through specific reference to evidence of record.
We make this suggestion bearing in mind the administrative burden that requiring detailed analysis
of each of the regulatory factors in all cases would impose, particularly given the high volume of
cases at the initial and reconsideration levels as well as in hearing office level cases where some
may be inapposite. Consistent with the decisions of the Tenth and the Fourth Circuits—and
Eastern District of New York precedent notwithstanding—we do not recommend a regulatory or
policy change that would impose this burden on adjudicators for factors that are not relevant to the
evaluation. Nonetheless, we think that requiring this specific articulation at the hearing office level
for relevant factors would address concerns with inadequately explained decisions and with
decision writing tools.
4. SSA should analyze structured data about subjective symptom evaluation.
Structuring information capture about subjective symptom evaluation, as SSA does at the
initial and reconsideration levels through the eCAT tool, can permit the agency to better understand
the frequency with which subjective symptoms contribute to a finding of disability, as well the
basis for deciding claims involving subjective symptoms (i.e., due to lack of a medically
determinable impairment that could reasonably be expected to produce them, where they are
substantiated by objective medical evidence, or after consideration of one or more applicable
regulatory factors). To ensure that adequate data is available for review, and to permit the agency
to identify and understand potential annual variance and trends over time, SSA should capture and

56

analyze information over several years prior to adopting any major regulatory changes based on
its analysis.
This is not to say that the agency should wait several years to analyze existing data or to
respond to information received. At the initial and reconsideration levels, SSA is already gathering
a tremendous amount of information about subjective symptom evaluation. Useful insights are
likely already obtainable from structured data contained in the more than ten million claims that
have been decided using eCAT. Furthermore, beginning the analytical process now can help the
agency to identify refinements to existing information technologies and structured data capture
initiatives that would improve ongoing adjudications and future analyses.
For instance, eCAT presently captures structured data on subjective symptom evaluations,
but review of fifty RPC files and interviews with SSA personnel indicate that occasionally
narrative subjective symptom evaluations or direct observations about the claimant are located in
other sections of eCAT. This insight might compel the agency to consider how best to consolidate
all subjective symptom related information and to ensure that the structured response is consistent
or reconciled with other evaluations in the record. In the same vein, SSA might also consider
feedback from NADE urging it to locate the subjective symptom evaluation section of eCAT
immediately following adjudicator analysis of whether a claimant has a medically determinable
impairment so it can be considered also in determining whether a severe impairment exists.471 To
give a final example, if the agency found that “other” factors were important considerations in a
large volume of subjective symptom evaluations, it could then explore ways to analyze the
unstructured narrative information adjudicators provide and possibly to structure information
capture about this catchall provision.
Analysis and review of structured subjective symptom evaluation data can help the agency
to ensure that state DDS decisionmakers are complying with regulatory and policy requirements.
This is also true at the hearing office level, where structured data on symptom evaluation is not
presently captured, but where failure to adequately consider the regulatory factors is observed in
eighteen to twenty-two percent (18-22%) of Appeals Council and judicial remands. The
administrative burden of the subjective symptom regulations is significant in cases that require
examination of seven regulatory factors, including the catch all “other” factors. This analysis
appears to be something adjudicators struggle with at all levels of review.
Structuring information capture about this part of the process permits the agency not only
to ensure consideration of the seven regulatory factors, but also to examine their continued
empirical relevance. SSA’s regulations for subjective symptom evaluation were largely based on
judicial directives from the 1980s, which are now three decades old. While the most prominent
orders involved class-action litigation that was perhaps more broadly representative of past
disability claimants than present-day judicial review (examining less than 2% of ALJ decisions
and only about 0.5% of initial claims), their continued salience and applicability to modern day
claimants is at least open to question and reconsideration. Structured data can provide the agency
with an informed basis for such an inquiry.
When properly undertaken, structured data analysis and responsive policy actions can also
promote the congressional goal of national uniform program administration.472 For example, SSA
might examine how frequently subjective symptoms selections (such as whether objective medical
evidence substantiates subjective symptom complaints, or which regulatory factors were most

57

informative) are altered between the initial, reconsideration, and eventually hearing office levels
of claim review. While DDS and ODAR-level comparisons might be complicated by additional
record development at the hearing office level, SSA is capable of measuring the volume, type, and
timing of evidentiary submissions at the hearing office level and can thus try to control for the
impacts of new evidence received late in the administrative process. 473 This may also help the
agency to understand what types of records were determinative in cases where the subjective
symptom evaluation changed on reconsideration or after a hearing. It might then consider ways
to encourage development of determinative types of record information earlier in the adjudicative
process so as to try and reduce the need for additional administrative review.
5. ODAR should provide targeted training to ALJs and should consider refining its
remand reasons relating to subjective symptom evaluation.
ODAR’s efforts to collect and analyze data about problematic decisionmaking at the
hearing office level are remarkable and likely unparalleled within the federal government. They
allow ODAR to identify recurring problem areas and to consider policy changes or offer direct
feedback and additional training to adjudicators. This is a marked improvement from the past
when, in the words of Judge Patricia Jonas, Executive Director of the Office of Appellate
Operations in ODAR, SSA’s “policy guidance and feedback to its ALJs was limited… [and] a
remand order was the primary method of providing written feedback from the [Appeals Council]
to ALJs.”474 ODAR’s data analytics have already helped it to recognize subjective symptom
evaluation as a common basis for remand. ODAR is presently developing targeted training
modules addressing each of the 170 reasons for remand it has identified.475 This training will be
linked to ODAR’s “How MI Doing” tool, which “gives adjudicators extensive information about
the reasons their cases were subsequently remanded and allows them to view their performance in
relation to the average of other ALJs in the office, region, and Nation.”476
The major problem with credibility evaluation appears to be implementation of existing
rules and policies. ALJ failure to discuss the appropriate credibility factors is the most frequently
occurring credibility-related remand reason at the hearing office level identified through the
agency’s own analysis of Appeals Council and judicial remands of ALJ decisions. Conference
staff analysis of appellate remands and sampled district court decisions in recent opinions citing
SSR 96-7p also identified problems with the application of SSA’s existing regulations and rules.
More specifically, administrative decisions are remanded by federal courts due to:
 Problems in considering limitations in a claimant’s daily activities imposed by
symptoms, and in comparing these activities to those needed to sustain substantial
gainful activity.
 Improper consideration of the absence of treatment, where treatment was unavailable,
unadvisable, or occasionally even pursued, and in some cases where further record
development was necessary.
 Reliance on conclusory or template language rather than specific analysis as required
by SSR 96-7p.
 Requiring objective medical evidence of subjective symptoms.
 Unconsidered or inappropriately rejected medical evidence supporting subjective
symptom complaints.

58

Stakeholders likewise raised concerns with some of these remand reasons and with policy
implementation and administration more generally. The AALJ, NOSSCR, and NADR agree that
there is room for improvement.
ODAR should ensure that the targeted training it provides to ALJs focuses on subjective
symptom evaluation and addresses not only application of the regulatory factors but also the
specific reasons for remand and implementation problem areas identified in federal case law.
Training should offer adjudicators specific and, to quote NADR, “realistic” examples of each of
the commonly identified problems in symptom evaluation, tied to the regulations and policy ruling.
It should also illustrate proper application of the policies and guidance. (Due to the lack of
systematic information regarding problematic subjective symptom evaluation at the DDS level,
this recommendation is limited to the ODAR adjudicative level. SSA should consider ways to
capture similar feedback at the DDS level, if any, such as through the quality review process.)
ODAR should also consider adding more specific remand reasons to those it uses in data
collection and analysis. If the agency does implement more focused training, following this
recommendation can help it to determine whether these issues continue to present problems for
adjudicators, as well as to assess how training impacts performance in these areas.

59

Part I References:
1

Factors contributing to the expectation of continued rising rates of chronic pain include: aging, obesity, medical
advances, undermanagement of acute post-surgical pain, and increased understanding of chronic pain syndromes.
PHILIP A. PIZZO, INST. OF MED., RELIEVING PAIN IN AMERICA 62-63 (2011).
2
US$2010, calculated using 2008 data. Id. at 91-92. In 2008, federal and state programs made $99 billion in painrelated medical expenditures. The federal Medicare program bore $65.3 billion of this financial burden, pain-related
expenditures comprised fourteen percent (14%) of all Medicare costs in 2008. Id. at 93.
3
Id.
4
Id. at 86.
5
Id. at 86-87.
6
Id. at 87 (5.0-5.9 more days missed).
7
Social Security Act, Titles II and XVI. 42 U.S.C. §§ 401-34, 1381-85 (2014).
8
For the SSDI definition, see 42 U.S.C. § 416(i)(1) (“. . . the term ’disability’ means (A) inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months,
or (B) blindness . . .”); 42 U.S.C. § 423; 20 C.F.R. § 404.1505(a). For the SSI definition, see 42 U.S.C. §
1382c(a)(3) (“an individual shall be considered to be disabled for purposes of this title if he is unable to engage in
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
twelve months”); 20 C.F.R. §§ 416.90, 416.906. Conceptually, however, “[t]here is no agreement on the definition
and measurement of disability.” GOOLOO S. WUNDERLICH, INST. OF MED., THE DYNAMICS OF DISABILITY:
MEASURING AND MONITORING DISABILITY FOR SOCIAL SECURITY PROGRAMS 4 (2002). In other government
settings, such as for the purposes of preventing discrimination under the Americans with Disabilities Act of 1990,
disability or handicap may have a very different definition. MARIAN OSTERWEIS ET AL., INST. OF MED., PAIN AND
DISABILITY 34 (1987). Only the Social Security Act definition is used in this report.
9
Soc. Sec. Admin., SSA Fiscal Year Disability Claim Data, available at http://www.ssa.gov/disability/data/ssa-safywl.htm (last visited July 7, 2014) (individuals may re-apply in consecutive years).
10
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., 12015.100, DISABILITY REDESIGN PROTOTYPE MODEL,
available at https://secure.ssa.gov/poms.nsf/lnx/0412015100 (last visited Feb. 02, 2015).
11
Id.
12
Soc. Sec. Admin., SSAR 99-4 (11), Titles II and XVI: Judicial Review of an Appeals Council Dismissal of a
Request for Review of an Administrative Law Judge Decision, Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir.
1983), available at http://www.ssa.gov/OP_Home/rulings/ar/11/AR99-04-ar-11.html (last visited Feb. 2, 2015).
13
Tom Johns, Branch Chief, Disability Quality Branch, Office of Quality Performance, Presentation to the
Occupational Information Development Advisory Panel, SSA’s Sequential Evaluation Process for Assessing
Disability (2009), available at
https://www.socialsecurity.gov/oidap/Documents/Social%20Security%20Administration.%20%20SSAs%20Sequen
tial%20Evaluation.pdf (last visited Sept. 2, 2014). Disability determinations for children follow a different
sequential evaluation process. 20 C.F.R. § 416.924.
14
Id. at 11.
15
20 CFR §§ 404.1529, 416.929.
16
SSDI, 42 U.S.C. §§ 416(i)(1), 423(d)(3); 20 C.F.R. § 404.1505(a). SSI, 42 U.S.C. § 1382c(a)(3); 20 C.F.R. §§
416.90, 416.906.
17
20 C.F.R. pt. 404(P) app. 1 pt. A (musculoskeletal system: spinal arachnoiditis, lumbar spinal stenosis, herniated
nucleus pulposus, osteoarthritis, degenerative disk disease, facet arthritis, and vertebral fracture; cardiovascular
system: ischemic heart disease, peripheral vascular disease, and aneurysm).
18
20 C.F.R. pt. 404(P) app. 1 pt. B.
19
20 C.F.R. pt. 404(P) app. 1 pt. A. For example, spinal arachnoiditis “is a condition characterized by adhesive
thickening of the arachnoid which may cause intermittent ill-defined burning pain and sensory dysesthesia. . . .
Individuals with arachnoiditis, particularly when it involves the lumbosacral spine, are generally unable to sustain
any given position or posture for more than a short period of time due to pain.” Id. at § 1.00 K 2(a)-(b).
20
20 C.F.R. §§ 404.1529(d)(2), 416.929(d)(2).

21

Id. at §§ 1.00, 4.00.
Id. at § 1.00 B 2(a).
23
Id. at § 4.00 In comparison, chest pain is a common symptom of many respiratory disorders, but pain is not
identified as medical criteria for any specific respiratory disorder. Id. at § 3.00.
24
Musculoskeletal impairments: arachnoiditis, osteoarthritis, back disorders, vertebral fracture; cardiovascular
impairments: chronic ischemic heart disease, peripheral vascular disease, aortic aneurysm; digestive impairments:
inflammatory bowel disease (IBD); hematological impairments: hereditary hemotalogical anemia include sickle cell;
immune system impairments: diffuse diseases of connective tissue (including polymyositis and dermatomyositis),
symptomatic human immunodeficiency virus (HIV) infection.
25
Pain may not occur in all claimants presenting with a particular impairment, even if pain could be used as a
diagnostic tool if it were present. On the other hand, pain may be a symptom of a number of impairments for which
it is not a primary diagnostic criterion.
26
Soc. Sec. Admin., SSR 96-7p, Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual's Statements, 61 Fed. Reg. 34,483, 34,484 (July 2, 1996) [hereinafter SSR 96-7p]. The
focus of the report is on adjudicatory evaluation of a claimant’s own statements about his or her symptoms under 20
C.F.R. §§ 404.1529 and 416.929. The scope of work excluded adjudicator examination of evidence or opinions
from “acceptable medical sources” and “other sources” under 20 C.F.R. §§ 404.1513(a) and 416.913(a); 20 C.F.R.
§§ 404.1513(d) and 416.913(d).
22

Part II References:
27

See OSTERWEIS, supra note 8.
Soc. Sec. Amendments of Aug. 1, 1956, Pub. L. No. 880 § 103(a), 70 Stat. 807) (codified as amended in scattered
sections of 20 U.S.C.) (adding a new Section 223(c)(2) to Title II of the Social Security Act providing for disability
insurance benefit payments with a definition of disability as follows: “The term ‘disability’ means inability to
engage in any substantial gainful activity by reason of any medically determinable physical or mental
impairment…”); see OSTERWEIS, supra note 8, at 22-28 (describing the early history of the Social Security program
and the decisions that led to the program relying on a medical determination of disability, as well as physician
opposition to such a standard). This policy remains in effect today for the social security disability insurance, and
was also adopted for the supplemental security income assistance program. Supra notes 8 - 16.
29
See OSTERWEIS, supra note 8.
30
David Agastein, Beyond the Threshold: Wincing at Social Security’s Process of Evaluating Pain, 17 J. NAT’L
ASS’N ADMIN. L. JUDGES 231, 261 (1997).
31
Ber v. Celebrezze, 332 F.2d 293 (2d Cir. 1964); Page v. Celebrezze, 311 F.2d 757 (5th Cir. 1963).
32
Simpson v. Schweiker, 691 F.2d 966, 970 (11th Cir. 1982); Marcus v. Califano, 615 F. 2d 23, 27 (2d Cir. 1979)
(citing, among other cases, Celebrezze v. Warren, 339 F.2d 833, 837-38 (10th Cir. 1964)); Sayers v. Gardner, 380
F.2d 940, 948 (6th Cir. 1967); Page, 311 F.2d at 757, 762-63.
33
Stark v. Weinberger, 497 F.2d 1092, 1097 (7th Cir. 1974); Bittel v. Richardson, 441 F.2d 1193, 1194 (3d Cir.
1971).
34
Gold v. Secretary of Health, Educ. and Welfare, 463 F.2d 38, 41 (2d Cir. 1972) (internal citation omitted); Conklin
v. Celebrezze, 319 F.2d 569, 571 (7th Cir. 1963) (citing Yeager v. Flemming, 282 F.2d 779, 782 (5th Cir. 1960);
Folsom v. Poteet, 235 F.2d 937 (9th Cir. 1956)).
35
E.g., Sayers v. Gardner, 380 F.2d 940, 948 (6th Cir. 1967); Celebrezze, 311 F.2d at 757, 763.
36
Soc. Sec. Amendments of Jan. 2, 1968, Pub. L. No. 90-248 § 158(b), 81 Stat. 821 (codified as amended in
scattered sections of 20 U.S.C.) (adding the definition of disability to Section 223 of the Social Security Act;
defining a “physical or mental impairment” as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.”).
37
E.g., Ware v. Schweiker, 651 F.2d 408, 412 (5th Cir. 1981); Marcus v. Califano, 615 F. 2d 23, 27 (2d Cir. 1979).
38
E.g., Bates v. Sullivan, 894 F.2d 1059, 1068-70 (9th Cir. 1990) (discussing non-uniformity and inconsistency in
the Ninth Circuit’s own precedent); Walker v. Bowen, 834 F.2d 635, 641 (7th Cir. 1987) (“a claim of pain may be
discounted if it is not borne out by objective medical evidence”).
39
See OSTERWEIS, supra note 8, at 56-57 ; Jon C. Dubin, Poverty, Pain and Precedent, 25 ST. MARY'S L.J. 81, 118
(1993) (describing public objection to 1980 regulations promulgated by SSA as in conflict with established judicial
precedent recognizing that pain itself could be disabling).
40
45 Fed. Reg. 55,584 (Aug. 20, 1980) (codified at 20 C.F.R. 404.1529 (1980)).
28

41

Soc. Sec. Admin., SSR 82-58, Titles II and XVI: Evaluation of Symptoms, 1982 WL 31378 (Jan. 1, 1982)
(discussed in Dubin, supra note 39, at 119-20).
42
The Office of the Chairman was unable to review the prior POMS directive, which SSA no longer maintains a
record of, and is relying on its analysis in Samuels v. Heckler, 668 F. Supp. 656, 660-64 (W.D. Tenn. 1986).
43
Soc. Sec. Amendments of June 9, 1980, Pub. L. No. 96-265 § 311, 94 Stat. 441 (codified as amended in scattered
sections of 20 U.S.C.).
44
See OSTERWEIS, supra note 8.
45
Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984).
46
Id.
47
Id.
48
Id. (emphasis in original).
49
SOC. SEC. ADMIN., HEARINGS, APPEALS, AND LITIG. LAW MANUAL I-5-4-7 (Aug. 2, 1989), available at
http://ssa.gov/OP_Home/hallex/I-05/I-5-4-7.html#i-5-4-7-v (last visited Sept. 2, 2014).
50
See Hyatt v. Heckler (Hyatt I), 757 F.2d 1455 (4th Cir. 1985). In this case, the Fourth Circuit rejected the district
court’s findings that claims relating to pain and subjective complaints were adjudicated improperly, but it later
adopted those findings in Hyatt v. Heckler (Hyatt II), 807 F.2d 376 (4th Cir. 1986). See also Hyatt v. Sullivan (Hyatt
III), 899 F.2d 329 (4th Cir. 1990).
51
Hyatt v. Heckler (Hyatt II), 807 F.2d 376, 378 (4th Cir. 1986).
52
Id. at 380-81 (4th Cir. 1986) (citing Bowen v. City of New York, 476 U.S. 467 (1986)). The Supreme Court had
remanded the Fourth Circuit’s decision in Heckler I for reconsideration in light of Bowen. Hyatt v. Bowen, 476 U.S.
1167, 1167 (1986).
53
Hyatt II, 807 F.2d at 381; Bowen, 476 U.S. at 1167; Samuels v. Heckler, 668 F. Supp. 656 (W.D. Tenn. 1986).
54
Social Security Disability Benefit Reform Act of Oct. 9, 1984, Pub. L. No. 98-460 § 3, 98 Stat. 1794 (codified as
amended in scattered sections of 20 U.S.C.) (amending the definition of disability in the Social Security Act’s
Section 223(d)(5)). The same law also required a more stringent legal standard for the conduct of continuing
disability reviews—permitting disqualification only upon a showing of medical, therapeutic, or technological
improvement related to his or her ability to work—and SSA implemented a temporary moratorium on
disqualification. Id. at § 2; U.S. GEN. ACCOUNTING OFFICE, GAO/HEHS-98-198 SSA MAKING PROGRESS IN
CONDUCTING DISABILITY REVIEWS 26 (1998), available at http://www.gao.gov/assets/230/226195.pdf (last visited
Sept. 2, 2014).
55
E.g., Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1213-1215 (11th Cir. 1991) (citing S. Rep. No. 466, 98th Cong., .2d
Sess. 23-24 (1984), for its statement that “[i]f courts ignore the Secretary's regulatory authority and the expressed
Congressional concerns for careful administration, national uniformity and verifiable evidence, the Committee has
little choice but to draw the statute as narrowly as possible.”).
56
Id. (describing the Ninth and Eleventh Circuits’ prior decisions permitting a finding of disability based solely on
subjective pain testimony, and the Eleventh Circuit’s adoption of a new pain standard consistent with the Disability
Benefit Reform Act of 1984); see also NANCY J. DAPPER ET AL., DEPT. OF HEALTH AND HUMAN SERVS., REPORT OF
THE COMM’N ON THE EVALUATION OF PAIN 72 (1986) (“courts have deferred to the new statutory language and in
some cases, gone so far as to find prior court rulings to be superseded”).
57
Samuels v. Heckler, 668 F. Supp. 656, 665 (W.D. Tenn. 1986) (noting the mootness of the issue in light of the
new statutory standard and subsequent implementing SSA directives).
58
Unfortunately, the U.S. Code was never updated to remove the now defunct provision.
59
Nancy J. Dapper ET AL., Report of the Commission on the Evaluation of Pain, 50:1 SOCIAL SECURITY BULLETIN
13, 39 (1987), available at http://www.ssa.gov/policy/docs/ssb/v50n1/v50n1p13.pdf (last visited Sept. 2, 2014).
60
Id. (summarizing NANCY J. DAPPER ET AL., DEPT. OF HEALTH AND HUMAN SERVS., REPORT OF THE COMM’N ON
THE EVALUATION OF PAIN xvii-xx (1986)).
61
See OSTERWEIS, supra note 8 at 265.
62
Id.
63
Id. at 269.
64
Id.
65
Id.
66
Soc. Sec. Admin., SSR 88-13, Titles II and XVI: Evaluation of Pain and Other Symptoms, 1988 WL 236011 (July
20, 1988).
67
Id. at *2.
68
A relatively discrete class action lawsuit in Colorado was settled by SSA in 1990 with an agreement to rehear
certain denied claims in which pain was alleged to have been improperly evaluated. SSA agreed that on rehearing

its adjudicators would fully develop claims of pain using the six factors listed in SSR 88-13. SOC. SEC. ADMIN.,
HEARINGS, APPEALS, AND LITIG. LAW MANUAL I-5-4-24, available at http://www.ssa.gov/OP_Home/hallex/I-05/I5-4-24.html (last visited Sept. 2, 2014).
69
Soc. Sec. Admin., SSR 88-13, supra note 66; Avery v. Sec’y of Health and Human Servs, 797 F.2d 19 (1st Cir.
1986) (publishing as an appendix POMS T00401.570, which the court found to commit SSA to consideration of
what became known as the Avery regulatory factors and hence imposing a legal obligation in the First Circuit
requiring SSA to consider treatment (other than medication) for relief of pain).
70
Howell v. Sullivan, 950 F.2d 343, 347-48 (7th Cir. 1991); Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991).
71
Pope v. Shalala, 998 F.2d 473, 483-86 (7th Cir. 1993) (discussing prior policy); Walker v. Bowen, 834 F.2d 635,
641 (7th Cir. 1987) (“a claim of pain may be discounted if it is not borne out by objective medical evidence”).
72
Hyatt v. Heckler, 711 F. Supp. 837, 844-48 (W.D.N.C. 1989).
73
Id. at 841.
74
Hyatt v. Sullivan, (Hyatt III), 899 F.2d 329, 336 (4th Cir. 1990).
75
Soc. Sec. Admin., SSR 90-1p, Titles II and XVI: Evaluation of Pain and Other Symptoms, 55 Fed. Reg. 31898-02
(Aug. 6, 1990).
76
U.S. GOV. ACCOUNTABILITY OFFICE, GAO-07-331, SSA HAS TAKEN STEPS TO ADDRESS CONFLICTING COURT
DECISIONS, BUT NEEDS TO MANAGE DATA BETTER ON THE INCREASING NUMBER OF REMANDS 40 (Apr. 5, 2007).
77
Stieberger v. Sullivan, 792 F. Supp. 1376 (S.D.N.Y. 1992).
78
Stieberger v. Sullivan, 738 F. Supp. 716, 755 (S.D.N.Y. 1990).
79
Id. at 741, 758-59.
80
Id. at 741-44 (citing findings of the Social Security Acquiescence Task Force).
81
SOC. SEC. ADMIN., HEARINGS, APPEALS, AND LITIG. LAW MANUAL I-5-4-13, available at
http://www.ssa.gov/OP_Home/hallex/I-05/I-5-4-13.html#i-5-4-13-att-a (last visited Sept. 2, 2014).
82
Id.
83
Soc. Sec. Admin., Evaluation of Symptoms, Including Pain, 56 Fed. Reg. 57, 928 (Nov. 14, 1991).
84
Id.
85
Soc. Sec. Admin., SSR 95-5p, Titles II and XVI: Considering Allegations of Pain and Other Symptoms in
Residual Functional Capacity and Individualized Functional Assessments and Explaining Conclusions Reached, 60
Fed. Reg. 55,405, 55,406 (Oct. 31, 1995).
86
Id.
87
U.S. GEN. ACCOUNTING OFFICE, GAO/HEHS-97-102, SSA MUST HOLD ITSELF
ACCOUNTABLE FOR CONTINUED IMPROVEMENT IN DECISIONMAKING 19 (1997), available at
http://www.gao.gov/products/HEHS-97-102.
88
Dept. of Health and Human Servs., Soc. Sec. Admin., The Bellmon Report, 45:5 SOC. SEC. BULLETIN 3, 14-15
(1982) available at http://www.ssa.gov/policy/docs/ssb/v45n5/v45n5p3.pdf (last visited Sept. 2, 2014) (finding at
the Appeals Council and ALJ level that severe pain could, combined with significant impairments, preclude
performance of substantial gainful activity whereas pain is a factor in DDS consideration of disability but is not the
basis for a separate finding of disability).
89
U.S. GEN. ACCOUNTING OFFICE, supra note 87, at 4. See also Social Security Disability Programs Challenges
and Opportunities: Hearing before the Subcomm. on Soc. Sec. of the H. Comm. On Ways & Means, 107th Cong. 89,
143 (2002) (statement of Jeffrey H. Price, President, Nat’s Assoc. of Disability Exam’rs) (“[DDS] decisions do take
into consideration the subjective findings such as pain and fatigue and the impact the alleged impairment is said to
have on a claimant’s daily activities. However, DDS decisions are influenced to a lesser extent than decisions made
by administrative law judges by these subjective findings. Where the disability examiner in the DDS is unable to
conclude that there is an objective medical basis to support the claimant’s allegations of pain or fatigue, the
subjective complaints are often disregarded, as required by law.”).
90
U.S. GEN. ACCOUNTING OFFICE, supra note 87, at 36 (citing SOC. SEC. ADMIN, OFFICE OF PROGRAM AND
INTEGRITY REVIEWS, FINDINGS OF THE DISABILITY HEARINGS QUALITY REVIEW PROCESS (Sept. 1994 and Mar.
1995)).
91
Id.
92
Id.
93
Id. at 67.
94
Id. at 41; see also ADMIN. CONF. OF THE U.S., RECOMMENDATION 87-6, State-Level Determinations in Social
Security Disability Cases ¶ 1, 52 Fed. Reg. 49,142 (Dec. 30, 1987) (encouraging additional experimentation with
face-to-face hearings and interviews during state evaluations of social security disability claimants).
95
U.S. GEN. ACCOUNTING OFFICE, supra note 87, at 41 (citing DEP’T OF HEALTH AND HUMAN SERVS., OFFICE OF

THE INSPECTOR GEN., THE DISABILITY APPEALS PROCESS: ADMINISTRATIVE LAW JUDGE PERSPECTIVES (May

1994)).
96
Id.
97
Letter from Carolyn W. Colvin, Acting Comm. Soc. Sec. Admin.to the Hon. Harold Rogers, Chairman, Comm. on
Appropriations U.S. House of Representatives 10 (Apr. 29, 2013), available at
http://www.ssa.gov/budget/FY13Files/2013COPCombined.pdf (last visited Sept. 02, 2014).
98
See infra, at Part IV, Subpart A: SSA’s electronic disability (eDib) process.
99
Soc. Sec. Admin., SSR 97-2p, Title II and Title XVI: Prehearing Case Review by Disability Determination
Services, 62 Fed. Reg. 42,850 (Aug. 8, 1997).
100
U.S. GEN. ACCOUNTING OFFICE, supra note 87, at 37.
Part III References:
101

E.g., Craig v. Chater, 76 F.3d 585, 593 (4th Cir. 1996) (discussing the legal history of subjective symptom
evaluation and observing that the 1991 regulations “provide the authoritative standard for the evaluation of pain in
disability determinations . . . and control all determinations made since their effective date”); McCoy v. Chater, 81
F.3d 44, 47 (6th Cir. 1996) (rejecting challenge to regulations and finding consistency with pre-1991 precedent);
Pope v. Shalala, 998 F.2d 473, 483-84 (7th Cir. 1993) (stating “we believe that the new regulations are entirely in
line with the previous interpretations respecting the evaluation of pain” and deferring to the regulations after
observing that the approach taken therein is consistent with that taken by every other circuit).
102
E.g., Wagner v. Apfel, No. 98-2260, 1999 U.S. App. LEXIS 29887, at *11 (4th Cir. 1999) (citing regulations and
prior precedent for the same proposition); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (citing
regulations and prior precedent for the same proposition); Smolen v. Chater, 80 F.3d 1273, 1281 n.1 (9th Cir. 1996)
(“[T]he new regulations are consistent with the Commissioner’s prior policies and with prior Ninth Circuit
caselaw.”); Knight v. Chater, 55 F.3d 309, 314 (7th Cir. 1995) (same); Siemers v. Shalala, 47 F.3d 299, 301 (8th
Cir. 1995) (citing the new regulations as consistent with Polaski); Jones v. Shalala, 10 F.3d 522, 525 (7th Cir. 1993)
(“We have recently modified our position on evaluating a claimant’s subjective symptoms of pain in accordance
with the Secretary’s recent clarifying regulations.”); Williams v. Sullivan, 970 F.2d 1178, 1186 (3rd Cir. 1992)
(citing regulations and prior precedent for the same proposition); Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1213-15
(11th Cir. 1991) (discussing the evolution of the pain standard in the 11th Circuit and the validity of the 1991
regulations despite the lapse in the statutory standard).
103
Pope, 998 F.2d at 473, 485-86.
104
SSA recently settled a class-action lawsuit where a primary complaint was that certain administrative law judges
were biased in their evaluation of claimant’s subjective complaints of pain. Complaint, Padro v. Astrue, CV11-1788
(E.D.N.Y. Apr. 12, 2011), available at http://www.aadpr.org/pdf_files/Padro_v_Astrue.pdf (last visited Sept. 4,
2014).
105
SOC. SEC. ADMIN., HEARINGS, APPEALS, AND LITIG. LAW MANUAL I-5-4-71, PADRO ET AL. V. COLVIN (May 20,
2014), available at http://www.ssa.gov/OP_Home/hallex/I-05/I-5-4-71.html (last visited Sept. 4, 2014).
106
20 C.F.R. pt. 404(P) app. 1 pt. A § 12.07 (defining somatoform disorders as “[p]hysical symptoms for which
there are no demonstrable organic findings or known physiological mechanisms” and requiring medically
documented evidence to establish that the level of severity for the disorder is met under the listing); Latham v.
Shalala, 36 F.3d 482, 484 (5th Cir. 1994) (somatoform disorders); Carradine v. Barnhart, 360 F.3d 754 (7th Cir.
2004); Craig-Cook v. Colvin, 2014 U.S. Dist. LEXIS 50594 (N.D. Tex. 2014); Kent v. Apfel 75 F. Supp. 2d 1170
(D. Kan. 1999).
107
42 U.S.C. § 423 (incorporated by reference into the SSI program at 42 U.S.C. § 1382(c)(3)(H)(i)).
108
42 U.S.C. § 423(d)(3).
109
42 U.S.C. §§ 423(d)(2)(a), 423(d)(3), 1382c(a)(3)(A), 1382c(a)(3)(D) (2013).
110
20 C.F.R. §§ 404.1520(d), 416.929(d) (2013); see also Soc. Sec. Admin., SSR 96-4p, Titles II and XVI:
Symptoms, Medically Determinable Physical and Mental Impairments, and Exertional and Nonexertional
Limitations, 61 Fed. Reg. 34,488 (July 2, 1996) [hereinafter SSR 96-4p].
111
20 C.F.R. §§ 404.1569a(a), 416.969a(a) (2013).
112
20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b) (2013).
113
20 C.F.R. §§ 404.1529(b), 416.929(b) (2013) (the intensity, persistence, or functionally limiting effects of
symptoms may be considered in determining whether an impairment is severe or in assessing a claimant’s residual
functional capacity at step two of the symptom evaluation process); Soc. Sec. Admin., SSR 96-3p, Titles II and XVI:
Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable

Impairment is Severe, 61 Fed. Reg. 34,468 (July 2, 1996) [hereinafter SSR 96-3p].
114
20 C.F.R. §§ 404.1529(b), 416.929(b) (2013).
115
20 C.F.R. §§ 404.1529(a), (c), 416.929(a), (c) (2013).
116
20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (2013).
117
Id., see also Pope v. Shalala, 998 F.2d 473, 483-86 (7th Cir. 1993).
118
20 C.F.R. §§ 404.1529(c)(3)-(4), 416.929(c)(3)-(4) (2013).
119
20 C.F.R. §§ 404.1545, 416.945 (2013).
120
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2013).
121
Id.
122
20 C.F.R. §§ 404.1569a, 416.969a (2013).
123
20 C.F.R. § 402.35(b)(1) (“These rulings represent precedent final opinions and orders and statements of policy
and interpretations that we have adopted.”).
124
SSR 96-3p, supra note 113; see also 20 C.F.R. §§ 404.1529(d), 416.929(d) (2013).
125
SSR 96-4p, supra note 110; see also 20 C.F.R. §§ 404.1569a, 416.969a (2013).
126
Heckler, 739 F.2d at 1320.
127
E.g., Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1996) (amending 1995 decision referencing ALJ findings that
“claimant’s testimony on his pain limitations was not fully credible”); Mickels v. Shalala, 29 F.3d 918, 921 (4th Cir.
1994); 35 F.3d 1027, 1034 (ALJ held that Rice “claimant’s pain testimony at the hearing was not fully credible”);
Bunnell v. Sullivan, 947 F.2d 341, 342-43 (9th Cir. 1991); Felisky v. Bowen, 35 F.3d 1027, 1034 (6th Cir. 1994)
(“claimant’s pain testimony at the hearing was not fully credible”); Williams v. Bowen, 844 F.2d 748, 754 (10th Cir.
1988) (citing Appeals Council opinion holding that the claimant’s subjective complaints were “not fully credible in
light of the objective findings.”); Morris v. Sec’y of Health & Human Servs., No. 86-5875, 1988 U.S. App. LEXIS
5113, at *7 (6th Cir. 1988) (citing 1985 ALJ decisions that found “claimant’s testimony is not fully credible”);
Beavers v. Sec’y of Health, Ed., & Welfare, 577 F.2d 383, 386 (6th Cir. 1978).
128
See FED. R. CIV. P. 52(a)(6) (“Findings of fact, whether based on oral or other evidence, must not be set aside
unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the
witnesses’ credibility.”); FED. R. BANKR. P. 8013 (“Findings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the
bankruptcy court to judge the credibility of the witnesses.”); FED R. EVID.104(e), 607-611, 806 (rules regarding
witness and declarant credibility); see also Tania Galloni, Keeping It Real: Judicial Review of Asylum Credibility
Determinations in the Eleventh Circuit After the REAL ID Act, 62 U MIAMI L. REV. 1037 (2008).
129
See Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir. 1982); see also Mark v. Celebrezze, 348 F.2d 289, 292
(9th Cir. 1965) (“it may be necessary… to determine the truthfulness of allegations of subjective pain”).
130
SSR 96-7p, supra note 26, at 43,484 (July 2, 1996) (“The adjudicator must then make a finding on the credibility
of the individual’s statements about symptoms and their functional effects.”).
131
See, e.g., BLACK’S LAW DICTIONARY, POCKET EDITION 155-56 (1996) (defining credibility as the “quality that
makes something (as a witness or some evidence) worthy of belief”).
132
FED. R. EVID. 608 (emphasis added); see also FED. R. EVID. 609 (setting forth circumstances under which a
witness’s “character for truthfulness” may be attacked by introducing evidence of his or her conviction of a crime).
133
Perhaps the best known example is the National Labor Relations Board, whose “established policy is not to
overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect.” Don Chavas, LLC, 361 NLRB No. 1 n. 1 (2014) (citations omitted).
Another example is the Board of Immigration Appeals (BIA), which “accords deference” to an administrative
judge’s findings concerning credibility . . . even when it reviews a case de novo. The BIA grants [such] deference . .
. because the judge personally observes the petitioner's testimony.” Mayo v. Ashcroft, 317 F.3d 867, 870-71 (8th
Cir. 2003) (internal quotations marks and citations omitted).
134
The APA does not require an agency to accord any deference to the decision of an administrative law judge in an
intra-agency appeal of a hearing conducted “on the record,” even as to questions of fact, unless its own rules require
otherwise. 5 U.S.C. § 557(b).
135
See, e.g., United States v. Earnest, 129 F.3d 906, 911 (7th Cir. 1997). The approach is reflected in the Federal
Rules of Civil Procedure, which provide that “[f]indings of fact . . . must not be set aside unless clearly erroneous,
and the reviewing court must give due regard to the trial court’s opportunity to judge the witness’s credibly.” FED.
R. CIV. P. 52(a)(6). Early on, some appellate courts only accorded deference to those findings of fact by a district
court involving credibility determinations. They reviewed all other findings of fact de novo. See Anderson v.
Bessemer City, 470 U.S. 564, 574-75 (1985). Rule 52(a)(6) of course supplants that approach. See id. at 575-76.
136
SSR 96-7p, supra note 26.

137

Id.
20 C.F.R. § 404.1529(a), 416.929(a).
139
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., DI 22510.011, USE OF PAIN SPECIALISTS AND/OR PAIN
CENTERS (CLINICS) AS CE SOURCES (May 06, 2008).
140
Letter from James Lankford, Chairman of the H. Subcomm. on Energy Policy, Healthcare, and Entitlements, and
Jackie Spier, Ranking Member of the H. Subcomm. on Energy Policy, Healthcare and Entitlements, to Carolyn
Colvin, Comm’r of Soc. Sec. 8 (Apr. 8, 2014), available at http://oversight.house.gov/wpcontent/uploads/2014/04/2014-04-08-Lankford-Speier-to-Colvin-SSA-SSDI-SSI-federal-disability-programs.pdf
(last visited Sept. 2, 2014).
141
Enclosure in Letter from Carolyn Colvin, Acting Comm’r of Soc. Sec., to the Honorable Darrell Issa, Chairman
of the H. Comm. on Oversight and Gov’t Reform 3 (July 9, 2014).
142
Id. at 4.
143
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., DI 22510.006, WHEN NOT TO PURCHASE A
CONSULTATIVE EXAMINATION (CE) (“Do not purchase symptom validity tests (SVT) to address issues of credibility
or malingering as part of a CE. Tests cannot prove whether a claimant is credible or malingering because there is no
test that, when passed or failed, conclusively determines the presence of inaccurate self-reporting.”) [hereinafter
POMS DI 22510.006]; SOC. SEC. ADMIN, DDS ADMIN. LETTER 866, CONSULTATIVE EXAMINATIONS MALINGERING
& CREDIBILITY TESTS—INFORMATION 1-2 (Jan. 26, 2012).
144
SOC. SEC. ADMIN., DDS ADMIN. LETTER 866, CONSULTATIVE EXAMINATIONS MALINGERING & CREDIBILITY
TESTS—INFORMATION 1 (Jan. 26, 2012).
145
SOC. SEC. ADMIN., OFFICE OF THE INSPECTOR GEN., A-08-13-23094, CONGRESSIONAL RESPONSE REPORT: THE
SOCIAL SECURITY ADMINISTRATION’S POLICY ON SYMPTOM VALIDITY TESTING IN DETERMINING DISABILITY
CLAIMS 3 (Sept. 2013) (citing SOC. SOC. ADMIN, CHIEF ADMIN. LAW JUDGE MEMORANDUM TO ALL ADMIN. LAW
JUDGES, MALINGERING AND CREDIBILITY TESTS—INFORMATION (July 30, 2012)) [hereinafter OIG, SVT
REPORT].
146
POMS DI 22510.006, supra note 143 (“NOTE: When the results of SVT are part of the medical evidence of
record, we consider them along with all of the relevant evidence in the case record.”).
147
OIG, SVT REPORT, supra note 145, at Appx. D-1 (Sept. 2013) (response from SSA).
138

Part IV References:
148

For example, federal regulations limit federal agency guidance and oversight of individual state agency
employees, particularly with regard to selection, tenure, and compensation of individual employees. 20 C.F.R. §§
404.1621(b), 416.1021(b).
149
42 U.S.C. § 421(a).
150
42 U.S.C. § 421 (a)(2).
151
42 U.S.C. § 421(k).
152
20 C.F.R. §§ 404.1603(a), 416.1003(a) et seq.
153
20 C.F.R. §§ 404.1615(e)-(f), 416.1015(e)-(f).
154
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., DI 80850.001, OFFICE OF HEARINGS AND APPEALS
(OHA) HEARING OFFICE (HO) ELECTRONIC DISABILITY (EDIB) PROCEDURES – CERTIFIED ELECTRONIC PROCESS,
available at https://secure.ssa.gov/poms.nsf/lnx/0480850001 (last visited Feb. 02, 2015) [hereinafter POMS DI
808.50.001].
155
Id.
156
Id.
157
POMS DI 80850.001, supra note 154.
158
See IT DASHBOARD, INTELLIGENT DISABILITY, available at https://itdashboard.gov/investment?buscid=592
Operational Performance (last visited Feb. 02, 2015) (Investments: DDS Automation, Disability Case Processing
System, Intelligent Disability, SSI Modernization).
159
POMS DI 80850.001, supra note 154.
160
Telephone interview with Jill Michels, eCAT Team Leader, Electronic Policy Applications Branch, Office of
Disability Policy and Debra Gardiner, Electronic Services Division Director, Division of Electronic Services, Office
of Disability Adjudication and Review (ODAR), Social Security Administration (Oct. 21, 2014) [hereinafter Oct. 21,
2014 telephone interview].
161
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., 11005.045, COMPLETING THE PAPER FORM SSA-3367F5 (DISABILITY REPORT – FIELD OFFICE), available at https://secure.ssa.gov/poms.nsf/lnx/0411005045 (last visited

Feb. 02, 2015). See also POMS DI 80850.001, supra note 154; SOC. SEC. ADMIN., PROGRAM OPERATIONS
MANUAL SYS., 11005.001, Field Office Disability Interviews, available at
https://secure.ssa.gov/poms.nsf/lnx/0411005001 (last visited Feb. 02, 2015).
162
POMS DI 80850.001, supra note 155. Field Office personnel also input a claimant’s information into the
Modernized Claim System (MCS) for disability insurance claims and the Modernized SSI Claims System (MSSCIS)
for SSI claims. See SOC. SEC. ADMIN., OFFICE OF THE INSPECTOR GEN., A-15-06-16109, PERFORMANCE INDICATOR
AUDIT: CLAIMS PROCESSING (Mar. 2007), available at
http://oig.ssa.gov/sites/default/files/audit/full/html/A-15-06-16109.html (last visited Feb. 02, 2015). Data entered
into these three systems propagate into the Case Processing and Management System (CPMS), which has been used
at the ODAR hearing office level to process cases since 2004. POMS DI 80850.001, supra note 155.
163
Id.
164
SOC. SEC. ADMIN., OFFICE OF THE INSPECTOR GEN., supra note 162.
165
eCAT Demonstration with Chuck Wansor, Branch Chief, Electronic Policy Applications Branch (EPAB), Office
of Disability Policy(ODP) and Jill Michels, eCAT Team Leader, EPAB, ODP, Ann Vollmer, Policy Analyst, eCAT
Team, EPAB, OHITEP, ODP, Melany Froio, Policy Analyst, eCAT Team, EPAB, OHITEP, ODP, Heather Murr,
Policy Analyst, eCAT Team, EPAB, OHITEP, ODP, Brandy Mershon, Policy Analyst, eCAT Team, EPAB, OHITEP,
ODP, Mary Quotroche, Supervisor, Office of Vocational, Evaluation and Process Policy (OVEPP), ODP, Veronica
Gales Short, Policy Analyst, OVEPP, ODP, and Nancy Schoenberg, Senior Advisor, ODP (Oct. 31, 2014) [hereinafter
Oct. 31, 2013 eCAT demonstration].
166
Oct. 21, 2014 telephone interview, supra note 160; see also
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., 26510.001, COMPLETING FORM SSA-831 (DISABILITY
DETERMINATION AND TRANSMITTAL), available at https://secure.ssa.gov/poms.nsf/lnx/0426510001 (last visited
Feb. 02, 2015).
167
Id.
168
Id. DDSs’ are also directed to discuss whether controlling weight was given to treating source medical opinions,
another common basis for judicial remands. Oct. 31, 2013 eCAT demonstration, supra note 165; see also G.
JACOBS ET AL.., SSA DISABILITY BENEFITS PROGRAM: ASSESSING THE EFFICACY OF THE TREATING PHYSICIAN
RULE, Report to the Admin. Conf. of the U.S. and the Soc. Sec. Admin. (2013), available at
http://www.acus.gov/report/treating-physician-rule-report-final.
169
SOC. SEC. ADMIN., OFFICE OF THE INSPECTOR GEN., A-01-10-11010, PERFORMANCE INDICATOR AUDIT: CLAIMS
PROCESSING 5 (Jan. 2011), available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-01-10-11010_7.pdf (last
visited Feb. 2, 2015) [hereinafter OIG, PERFORMANCE INDICATOR AUDIT].
170
A 2011 OIG report indicated that some eCAT users were using eCAT after making the disability determinations,
essentially filling in the decision rationale after the fact. Id. More recently, a 2014 interview with SSA personnel
indicate that, in their experience, the tool is now being used as intended during case processing to guide
decisionmaking. Preventing Disability Scams: Hearing Before the Subcomm. on Soc. Sec. of the H. Comm. on Ways
and Means, 113th Cong. (Feb. 26, 2014) (statement of William B. Zielinksi, Deputy Commisioner of Systems and
Chief Information Officer), available at http://www.ssa.gov/legislation/testimony_022614.html (last visited Feb. 02,
2015).
171
Telephone interview with Nancy Schoenberg, Senior Advisor, Office of Disability Policy (ODP), Melissa
Spenser, Deputy Associate Commissioner ODP, Office of Retirement and Disability Policy and Art Cardenas,
Acting Deputy Associate Commissioner, Office of Disability Determinations (ODD), Office of Operations (Oct. 22,
2014) [hereinafter Oct. 22, 2014 telephone interview].
172
Id.
173
SOC. SEC. ADMIN., ECAT USER MANUAL 9.0, 10 (Aug. 08, 2014).
174
Id. at 14.
175
Id. at 162; email from Jill Michels, eCAT Team Leader, Electronic Policy Applications Branch, Office of
Disability Policy to Stephanie Tatham, Att’y Advisor, ADMIN. CONF. OF THE U.S. (Nov. 19, 2014) (on file with
author) [hereinafter Nov. 19, 2014 email].
176
Nov. 19, 2014 email, supra note 175.
177
Memorandum from Linda Dorn, Associate Commissioner for Disability Determinations, on eCAT Full Roll Out
and Implementation for Initial/Reconsideration Claims (July 18, 2014) (on file with author).
178
Id.
179
IT DASHBOARD, supra note 158.
180
SOC. SEC. ADMIN (ORDP/ODP/ODPMI), ECAT EMIS REPORT (Dec. 2014).
181
Email from Nancy Schoenberg, Senior Advisor Office of Disability Policy to Stephanie Tatham, Att’y Advisor,

ADMIN. CONF. OF THE U.S. (Dec. 23, 2014) (on file with author).
182
Oct. 22, 2014 telephone interview, supra note 171.
183
Id.
184
OIG, PERFORMANCE INDICATOR AUDIT, supra note 169.
185
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., DI 30005.005, TYPES OF FEDERAL QUALITY REVIEWS,
available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0430005005 (last visited Feb. 02, 2015) [hereinafter POMS
DI 30005.005].
186
Id. An initial calendar-quarter quality review is used to calculate quarterly performance accuracy statistics, but
additional monthly reporting is provided on an informational basis.
187
42 U.S.C. § 221(c) (PER of at least fifty percent of Title II and concurrent Title II/Title XVI initial and
reconsideration determinations); Social Security Act Section 1633(e)(1) (PER of at least fifty percent of Title XVI
adult initial and reconsideration determinations).
188
Oct. 22, 2014 telephone interview, supra note 171.
189
Id., see also POMS DI 30005.005, supra note 185.
190
Id.
191
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., GN 04440.003, EXPLANATION OF QUALITY REVIEW
(QR) TERMS, available at HTTPS://secure.ssa.gov/apps10/poms.nsf/lnx/0204440003 (last visited Feb. 02, 2015).
192
The standard of review is not de novo, but rather is based on a preponderance of the evidence. SOC. SEC. ADMIN.,
PROGRAM OPERATIONS MANUAL SYS., GN 04440.007, QUALITY REVIEW (QR) STANDARD, available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0204440007 (last visited Feb. 02, 2015). Nonetheless, quality reviewers
must take care to ensure that they do not substitute their own judgment for that of the adjudicating component where
they would reach a different or opposite case determination, but where the evidence and documentation in a fully
documented case equally support the adjudicating component’s determination. Id.
193
Id.
194
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., GN 04440.201, GENERAL RULES FOR ROUTING AND
CORRECTING DEFICIENT CASES, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0204440201 (last visited
Feb. 02, 2015).
195
TCAs are issued where the quality reviewers determine, using a standard known as the Probability of Reversal
Rule, that missing medical or vocational documentation is unlikely to reverse the disability determination or change
the period of disability. Id.; see also SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., DI 80850.010,
WHEN YOU CANNOT USE THE PROBABILITY OF REVERSAL (POR), available at
https://secure.ssa.gov/apps10/poms.nsf/lnx (last visited Feb. 3, 2015).
196
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., DI 30005.121-127 (defining specific types of
deficiencies and other technical corrective actions without reference to errors in credibility or subjective symptom
evaluation); see also SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., GN 04440.901, SSA-1774-U5 –
REQUEST FOR CORRECTIVE ACTION (exhibiting the form filled out by quality reviewers in a request for corrective
action, on which they may provide a narrative description about the action requested and rationale but which does not
appear
to
capture
structured
data
about
subjective
symptom
evaluation),
available
at
https://secure.ssa.gov/apps10/poms/images/SSA1/G-SSA-1774-U5-1.pdf (last visited Feb. 02, 2015).
197
Email from Kathi Thompson, Disability Initial Director, Office of Quality Review, Office of Budget, Finance,
Quality and Management, Soc. Sec. Admin. to Stephanie Tatham, Att’y Advisor, Admin. Conf. of the U.S. (Dec. 4,
2014) (on file with author).
198
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., GN 04440.002, THE QUALITY REVIEW (QR) PROCESS,
available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0204440002 (last visited Feb. 02, 2015).
199
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., DI 30007.105, REQUEST FOR PROGRAM
CONSULTATION (RPC) OVERVIEW, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0430007105 (last
visited Feb. 02, 2015).
200
Id.
201
Id.
202
Email from Nancy Schoenberg, Senior Advisor Office of Disability Policy to Stephanie Tatham, Att’y Advisor,
Admin. Conf. of the U.S. (Nov. 4, 2014) (on file with author).
203
At times, it was difficult for Conference staff to distinguish between the original DDE, prepared by the DDS
team or SDM, and the OQR-edited DDE, although sometimes OQR edits or comments were apparent. See, e.g.,
SSA, RPC Case—0913-062, DDE at 5-6 (Sept. 6, 2013). With access to the full file, the RPC reviewer would be
able to discern OQR edits to DDEs.
204
E.g., SSA, RPC Cases—0114-065, 0114-082, 0214-016, 0314-058, 0913-062, 1213-018.

205

I.e., there was a substantive Group I deficiency that would have produced a return, rather than a TCA.
E.g., SSA, RPC Cases—0114-077 (RPC Resolution at 2 (Discussed by ODP in “Evidence” section)), 0214-016
(RPC Resolution at 1 (Discussed by ODP in “Case Facts” section)), 0314-058 (RPC Resolution at 1 (Discussed by
ODP in “Case Facts” section)), 1113-018 (RPC Resolution at 2 (Discussed by ODP in “Evidence” section)).
207
SSA, RPC Cases—0214-016, 0314-058.
208
SSA, RPC Case—1213-071 (RPC Resolution at 1).
209
SSA, RPC Cases—0214-016, 0214-059, 0314-058, 1013-027.
210
E.g., SSA, RPC Cases—1213-041 (DDS must attempt to verify test results), 1213-049 (DDS must obtain additional
ADL statements), 0114-0774 (updated ADLs needed).
211
E.g., SSA, RPC Cases—0114-006, 0114-034, 0214-065, 0913-055, 1013-027, 1213-027.
212
SSA, RPC Cases—0214-059, 0314-007, 0314-058, 1013-028.
213
Id.
214
E.g., SSA, RPC Cases—0114-065, 0913-102, 1213-021.
215
E.g., SSA, RPC Cases—0114-077 (RPC Resolution at 2 (discussed by ODP in “Evidence” section)), 0214-016
(RPC Resolution at 1 (discussed by ODP in “Case Facts” section)), 0314-058 (RPC Resolution at 1 (discussed by
ODP in “Case Facts” section)), 1113-018 (RPC Resolution at 2 (Discussed by ODP in “Evidence” section)).
216
SSA, RPC Cases—0114-005, DDE at 8-9 (Dec. 29, 2013).
217
Id. ODP RPC Resolution at 2-3 (“The [claimant’s] ADLs are confirmed by a friend and the FO observation of the
[claimant] lends credence to her alleged pain induced restrictions. The [claimant’s] alleged symptom related
limitations are credible considering all of the evidence and the DDS RFC is reasonable. . . . The Group I
Documentation Deficiency is rescinded.”).
218
E.g., SSA, RPC Cases—0214-065, 0913-108, 113-036 (Case Analyses) and 0114-065, 0214-016 (RFC). This
observation was confirmed by SSA officials. Oct. 31, 2013 eCAT demonstration, supra note 165.
219
For an overview of the ODAR, see SOC. SEC. ADMIN., ORGANIZATIONAL MANUAL, CHAPTER TL: OFFICE OF
DISABILITY ADJUDICATION REVIEW, available at http://www.ssa.gov/org/orgdcdar.htm (last visited Aug. 26, 2014).
220
20 C.F.R. §§ 404.968(a), 416.1468(a) (2013). Appeals Council review is discretionary, and limited to cases that
meet the criteria set forth at 20 C.F.R. §§ 404.970, 416.1470.
221
20 C.F.R. §§ 404.981, 416.1481 (2013).
222
Use of the FIT is encouraged but not required. Some decisions may be written outside of FIT if it is not
applicable, such as where a decision is based on non-disability issues. Additionally, as recently as 2010, some ALJs
reported a refusal to use the FIT to SSA’s Office of the Inspector General. SOC. SEC. ADMIN., OFFICE OF THE
INSPECTOR GEN., 22A-02-09-19068, OFFICE OF DISABILITY ADJUDICATION AND REVIEW DECISION-WRITING
PROCESS, AUDIT REPORT 2 (Nov. 2010), available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-02-0919068_7.pdf (last visited Feb. 4, 2015).
223
Id.
224
Securing the Future of the Social Security Disability Insurance Program: Hearing Before the Subcomm. on Soc.
Sec. of the H. Comm. on Ways and Means, 112th Cong. 9 (June 27, 2012) (statement of Michael J. Astrue, Comm’r
of Soc. Sec.), available at http://www.ssa.gov/legislation/testimony_062712.html (last visited Sept. 02, 2014).
225
Email from Rainbow Forbes, Appeals Officer, Office of Appellate Operations, Office of Disability Adjudication
and Review, Soc. Security Admin. to Stephanie Tatham, Att’y Advisor, Admin. Conf. of the U.S. (Mar. 13, 2014)
(on file with author) [hereinafter Mar. 13, 2014 email].
226
SOC. SEC. ADMIN., SSA FY 2007 PERFORMANCE AND ACCOUNTABILITY Report, Management’s Discussion and
Analysis: Agency Challenges 23 (2007), available at http://www.ssa.gov/finance/2007/Agency_Challenges.pdf.
227
Preventing Disability Scams: Hearing Before the Subcomm. on Soc. Sec. of the H. Comm. on Ways and Means,
113th Cong. (Feb. 26, 2014) (statement of Carolyn W. Colvin, Acting Commissioner), available at
http://www.ssa.gov/legislation/testimony_022614.html (last visited Feb. 02, 2015).
228
SOC. SEC. ADMIN, 2013 FISCAL YEAR AGENCY REPORT, Acting Comm’r of Soc. Sec., Carolyn W. Colvin, 14
(Dec 9, 2013), available at http://www.ssa.gov/finance/2013/Full%20FY%202013%20AFR.pdf (last visited Feb.
02, 2015).
229
SOC. SEC. ADMIN, 2013 SERVICE DELIVERY PLAN, (FEB. 20, 2013), available at
http://www.ssa.gov/open/SDP/SDP_022013.pdf (last visited Feb. 5, 2015).
230
Oct. 22, 2014 telephone interview, supra note 171.
231
20 C.F.R. §§ 404.967, 404.968, 416.1467, 416.1468.
232
20 C.F.R. §§ 404.969(a)-(d), 416.1469(a)-(d) (2013) (setting current regulatory procedures for identification of
own motion review cases). SSA has regulatory authority to conduct selective sampling. The Administrative
Conference has encouraged SSA to expand and focus own motion review on cases with a higher likelihood of
206

containing errors. ADMIN. CONF. OF THE U.S, Recommendation 2013-1, Improving Consistency in Social Security
Disability Adjudications ¶ 4 (June 13, 2013), available at https://www.acus.gov/recommendation/improvingconsistency-social-security-disability-adjudications.
233
Id.; see also Social Security Disability Programs: Improving the Quality of Benefit Award Decisions: Hearing
before the Permanent Subcomm. on Investigations of the S. Comm. on Homeland Sec. and Gov’t Affairs 2, 112th
Cong. 1 (2012) (statement of J. Patricia Jonas, Exec. Dir., Office of Appellate Operations, Office of Disability and
Rev., Soc. Sec. Admin.).
234
Soc. Sec. Admin, ODAR Sample Cases—Appealed Denials—AC Denial 2a, ALJ Decision at 7 (Oct. 18, 2011);
SSA, ODAR Sample Cases—Appealed Denials—AC Denial 6a, ALJ Decision at 5 (Sept. 22, 2011); SSA, ODAR
Sample Cases—Appealed Denials—AC Denial 11a, ALJ Decision at 6 (Jan. 10, 2012).
235
Soc. Sec. Admin, ODAR Sample Cases—Appealed Remands—AC Remand 3b, Order of the Appeals Council at 1
(Feb. 21, 2013); SSA, ODAR Sample Cases—Appealed Remands—AC Remand 5b, Order of the Appeals Council at
2-3 (May 22, 2013); SSA; ODAR Sample Cases—Appealed Remands—AC Remand 6b, Order of the Appeals Council
at 2 (July 8, 2013); SSA, ODAR Sample Cases—Appealed Remands—AC Remand 7b, Order of the Appeals Council
at 1-2 (Aug. 14, 2013); SSA, ODAR Sample Cases—Appealed Remands—AC 9b, Order of the Appeals Council at 2
(Dec. 14, 2012); SSA, ODAR Sample Cases—Appealed Remands—AC Remand 12b, Order of the Appeals Council at
2 (Jan. 11, 2013) .
236
Soc. Sec. Admin, ODAR Sample Cases—Appealed Remands—AC Remand 5b, Order of the Appeals Council at 12 (May 22, 2013); SSA, ODAR Sample Cases—Appealed Remands—AC Remand 9b, Order of the Appeals Council
at 1 (Dec. 14, 2012); SSA, ODAR Sample Cases—Appealed Remands—AC Remand 11b, Order of the Appeals Council
at 2 (Sept. 6, 2013).
237
Soc. Sec. Admin, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 1, ALJ Decision
at 5 (May 15, 2013); SSA, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 3, ALJ
Decision at 4 (Feb. 22, 2013); SSA, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 4,
ALJ Decision at 4 (Nov. 19, 2012); SSA, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed
Effectuated 5, ALJ Decision at 4 (Oct. 9, 2012); SSA, ODAR Sample Cases—Unappealed Effectuated—AC
Unappealed Effectuated 7, ALJ Decision at 5 (Oct. 12, 2012); SSA, ODAR Sample Cases—Unappealed Effectuated—
AC Unappealed Effectuated 8, ALJ Decision at 5 (Mar. 22, 2012); SSA, ODAR Sample Cases—Unappealed
Effectuated—AC Unappealed Effectuated 9, ALJ Decision at 6 (Sept. 13, 2013); SSA, ODAR Sample Cases—
Unappealed Effectuated—AC Unappealed Effectuated 12, ALJ Decision at 4 (July 26, 2013).
238
Soc. Sec. Admin, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 1, ALJ Decision
at 5 (May 15, 2013); SSA, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 3, ALJ
6Decision at 4 (Feb. 22, 2013); SSA, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated
4, ALJ Decision at 4 (Nov. 19, 2012); SSA, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed
Effectuated 5, ALJ Decision at 4-5 (Oct. 9, 2012); SSA, ODAR Sample Cases—Unappealed Effectuated—AC
Unappealed Effectuated 7, ALJ Decision at 5 (Oct. 12, 2012); SSA, ODAR Sample Cases—Unappealed Effectuated—
AC Unappealed Effectuated 8, ALJ Decision at 5 (Mar. 22, 2012); SSA, ODAR Sample Cases—Unappealed
Effectuated—AC Unappealed Effectuated 9, ALJ Decision at 6-7 (Sept. 13, 2013); SSA, ODAR Sample Cases—
Unappealed Effectuated—AC Unappealed Effectuated 12, ALJ Decision at 5 (July 26, 2013).
239
SSA, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 1, ALJ Decision at 6 (May 15,
2013); SSA, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 7, ALJ Decision at 5 (Oct.
12, 2012).
240
Soc. Sec. Admin, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 3, ALJ Decision
at 4 (Feb. 22, 2013); SSA, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 7, ALJ
Decision at 4 (Oct. 12, 2012).
241
Soc. Sec. Admin, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 10, ALJ Decision
at 6 (Mar. 5, 2013); SSA, ODAR Sample Cases—Unappealed Effectuated—AC Unappealed Effectuated 11, ALJ
Decision at 4 (June 26, 2013).
242
Soc. Sec. Admin, ODAR Sample Cases—Unappealed Remands—Unappealed AC Remand 2b, Order of the Appeals
Council at 3 (Mar. 29, 2013); SSA, ODAR Sample Cases—Unappealed Remands—Unappealed AC Remand 4b, Order
of the Appeals Council at 3-4 (Sept. 20, 2013); SSA, ODAR Sample Cases—Unappealed AC Remands—Unappealed
AC Remand 6b, Order of the Appeals Council at 4 (Dec. 18, 2013); SSA, ODAR Sample Cases—Unappealed AC
Remands—Unappealed AC Remand 8b, Order of the Appeals Council at 2 (Aug. 9, 2013); SSA, ODAR Sample
Cases—Unappealed AC Remands—Unappealed AC Remand 9b, Order of the Appeals Council at 4-5 (Feb. 19, 2013);
SSA, ODAR Sample Cases—Unappealed AC Remands—Unappealed AC Remand 12b, Order of the Appeals Council
at 3 (Aug. 21, 2013); SSA, ODAR Sample Cases—Unappealed AC Remands—Unappealed AC Remand 14b, Order

of the Appeals Council at 3 (Dec. 11, 2013).
243
Soc. Sec. Admin, ODAR Sample Cases—Unappealed Remands—Unappealed AC Remand 2b, Order of the Appeals
Council at 3 (Mar. 29 2013) (on file with author); SSA, ODAR Sample Cases—Unappealed Remands—Unappealed
AC Remand 5b, Order of the Appeals Council at 3 (Oct. 23, 2013); SSA, ODAR Sample Cases—Unappealed
Remands—Unappealed AC Remand 12b, Order of the Appeals Council at 3 (Aug. 21, 2013); SSA, ODAR Sample
Cases—Unappealed Remands—Unappealed AC Remand 13b, Order of the Appeals Council at 3 (Sept. 5, 2013); SSA,
ODAR Sample Cases—Unappealed Remands—Unappealed AC Remand 14b, Order of the Appeals Council at 2-3
(Dec. 11, 2013).
244
Soc. Sec. Admin, ODAR Sample Cases—Unappealed Remands—Unappealed AC Remand 3b, Order of the Appeals
Council at 3 (July 12, 2013); SSA, ODAR Sample Cases—Unappealed Remands—Unappealed AC Remand 9b, Order
of the Appeals Council at 2 (Feb. 19 2013).
245
SOC. SEC. ADMIN., OFFICE OF THE INSPECTOR GEN. REVIEW OF ADMIN. LAW JUDGES’ DECISIONS, A-07-1221234, 3-4 (Mar. 2012), available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-07-12-21234.pdf (last
visited Feb. 5, 2014) [hereinafter OIG, REVIEW OF ALJ DECISIONS].
246
Id. at 4.
247
Id. at 9.
248
Soc. Sec. Admin., DCBFQM OQR DDA Cases: Unfavorable without Credibility Issues—Case 41, Hearing Level
Disagreement Referral at 2 (Feb. 2013).
249
Quality reviewers also identified some errors in subjective symptom evaluation even in files SSA did not indicate
had issues in this area (see below).
250
Soc. Sec. Admin, DCBFQM OQR DDA Cases: Favorable—Case 1, Hearing Level Disagreement Referral at 1 (Oct.
2012); Favorable—Case 2, Hearing Level Disagreement Referral at 1-2 (Oct. 2012); Favorable—Case 5, Hearing
Level Disagreement Referral at 1 (Dec. 2012); Favorable—Case 7, Hearing Level Disagreement Referral at 2-3 (Oct.
2012), Favorable—Case 8, Hearing Level Disagreement Referral at 2 (Nov. 2012); Favorable—Case 9, Hearing Level
Disagreement Referral at 1-2 (Nov. 2012), Favorable—Case 10, Hearing Level Disagreement Referral at 1 (Feb.
2013); Favorable—Case 11, Hearing Level Disagreement Referral at 1 (Jan. 2013); Favorable—Case 12, Hearing
Level Disagreement Referral at 1 (Nov. 2012); Favorable—Case 13, Hearing Level Disagreement Referral at 2 (Feb.
2013); Favorable—Case 21, Hearing Level Disagreement Referral at 1 (Dec. 2011).
251
Soc. Sec. Admin, DCBFQM OQR DDA Cases: Favorable without Credibility Issues—Case 19, Hearing Level
Disagreement Referral at 2 (Oct. 2011); Unfavorable without Credibility Issues—Case 39, Hearing Level
Disagreement Referral at 1 (Apr. 2013); Unfavorable without Credibility Issues—Case 41, Hearing Level
Disagreement Referral at 2 (Feb. 2013).
252
Soc. Sec. Admin, DCBFQM OQR DDA Cases: Favorable—Case 7, Hearing Level Disagreement Referral at 2
(Oct. 2012); Favorable—Case 8, Hearing Level Disagreement Referral at 1-3 (Nov. 2012); Favorable—Case 12,
Hearing Level Disagreement Referral at 2 (Nov. 2012).
253
Soc. Sec. Admin, DCBFQM OQR DDA Cases: Favorable—Case 10, Hearing Level Disagreement Referral at 2
(Feb. 2013); Favorable—Case 11, Hearing Level Disagreement Referral at 1 (Jan. 2013); Favorable—Case 13,
Hearing Level Disagreement Referral at 2 (Feb. 2013).
254
Supra notes 104-105 and accompanying text.
255
SSR 13-1p, Titles II and XVI: Agency Processes for Addressing Allegations of Unfairness, Prejudice, Partiality,
Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJs) 78 FR 6168 (Jan. 29, 2013) [hereinafter
SSR 13-1p].
256
Id.
257
OIG, REVIEW OF ALJ DECISIONS, supra note 245, at 3.
258
Id.
259
Id. at 2.
260
Id.
261
Soc. Sec. Admin., Sample Bias Referrals from the Office of Appellate Operations to ODAR’s Division of
Quality Service (2014) (on file with author). It would be inappropriate to draw general inferences about bias
complaints from this description of individual complaints.
262
For example, one claimant representative wrote: “The ALJ paints a rosier picture of my client’s abilities around
the house and around routine activities than [the client] actually presented. This is an improper and less than faithful
use of the exhibit that results in bias against the claimant.” Another representative alleged that the “ALJ erred by
approaching thus case with an admitted bias against claimant’s testimony regarding subjective complaints associated
with the physical, mental and side effects of medications as they effect the claimant’s activities of daily living and
work restrictions.” One attorney accused the ALJ of “turn[ing] the hearing quickly into an ‘adversarial’ hearing

upon his questioning of the claimant on his past earnings.” (ALJ XXX). Several alleged bias due to consideration of
a claimant’s prior criminal history and past or present use of substances, including alcohol. An evidently
unrepresented claimant stated that “The [ALJ] demonstrated a bias toward me due to a felony record evident in the
body of the decision … The ALJ also stated I am manipulative, a liar, and persistent criminal.” Another thought
“[The ALJ] is bias [sic] towards people that have been incarcerated or use of have possibly sold illegal drugs.” Id.
263
Id. at 13.
264
SSR 13-1p, supra note 255.
265
Remands are categorized or coded at three levels: a) by Appeals Council personnel in the Division of Civil
Actions when they are received from courts, b) by Appeals Council personnel after remand by the Appeals Council,
and c) at the hearing office level for both judicial and Appeals Council remands.
266
20 C.F.R. §§ 404.1529(a)-(c), 416.929(a)-(c) (2013).
267
SSA has identified similar bases for remand in the evaluation of a third party’s credibility.
268
Third party credibility issues were slightly more common—they were identified in as many as three percent (3%)
of remanded cases at some levels of review—but were still relatively rare.
Part V References:
269

For a full elaboration see PAUL VERKUIL & JEFFREY LUBBERS, ALTERNATIVE APPROACHES TO JUDICIAL REVIEW
OF SOCIAL SECURITY DISABILITY CASES, SSAB NO. SSA-RFG-02-0026 (2002), available at
http://www.ssab.gov/Publications/Disability/VerkuilLubbers.pdf (last visited Sept. 02, 2014).
270
Letter from Carolyn W. Colvin, supra note 97.
271
Id.
272
ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS (2013), available at
http://www.uscourts.gov/Statistics/JudicialBusiness/2013.aspx (last visited Sept. 02, 2014) [hereinafter JUDICIAL
BUSINESS 2013].
273
In 2013, U.S. Magistrate Judges issued reports and recommendations in nearly 5,000 social security cases; U.S.
District Courts terminated 16,283 SSDI and SSI actions in the same time period. Id. at Table M-4B 1, Table C-4 2.
See also text accompanying note 351; S. Rep. No. 96-74, at 5 (1979), reprinted in 1979 U.S.C.C.A.N. 1469, 1473
(noting in the Senate Committee Report for the 1979 Amendments to the Federal Magistrate Act that “the fact that
magistrates presently handle social security appeals and that this procedure has worked well for all parties
concerned. Many litigants feel they have indeed received justice if they are given their ‘day in court’ . . . .”);
Mathews v. Weber, 423 U.S. 261 (1976) (upholding a district court rule referring all Social Security cases to
magistrate judges for preliminary review).
274
VERKUIL ET AL., supra note 269, at 8-9.(describing direct review of agency formal adjudications in the courts of
appeals as “the usual practice”). But see Joseph Mead & Nicholas A. Fromherz, Choosing a Court to Review the
Executive 67 ADMIN. L. REV. 1 (at 10 in SSRN version), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2409944 (forthcoming Mar. 2015) (raising questions about this
common conception). See also ADMIN. CONF. OF THE U.S., Recommendation 75-3, The Choice of Forum for
Judicial Review of Agency Action, 40 Fed. Reg. 27,926 (July 2, 1975) (urging direct review of a number of agency
actions in courts of appeals, but recommending that SSA’s order continue to be reviewable in the first instance in
district courts).
275
The volume of social security cases filed in district courts in 2013 was more than double the volume of all
administrative appeals filed in the courts of appeals in the same period. JUDICIAL BUSINESS 2013, supra note 272;
see also VERKUIL ET AL., supra note 269, at 9-10.
276
Id. at 8.
277
See Richard A. Pierce, District Court Review of Findings of Fact Proposed by Magistrates: Reality Versus
Fiction, 81 GEO. WASH. L. REV. 1236, 1237 (2013) (“District judges can assign to magistrates the tasks of
conducting hearings and making proposed findings with respect to a wide variety of civil and criminal matters.”).
278
See VERKUIL ET AL., supra note 269, at 12 (suggesting that the unusual statutory relationship between judges and
the agency may contribute to the judicial remand rate of one out of every two disability cases).
279
Morton Denlow, Substantial Evidence Review in Social Security Cases as an Issue of Fact, 28 J. NAT’L ASS’N
ADMIN. L. JUDICIARY 28, 40 (2008) (describing the self-reported factual nature of some magistrate judge review and
reporting that in a survey of all U.S. magistrate judges with a fifty percent (50%) response rate, thirty percent (30%)
characterized their experience of “reviewing the record in a social security case to determine whether substantial
evidence supports the decision of the ALJ” as “deciding a question of fact”).
280
Id.

E.g., FED. R. CIV. P. 52(a)(6) (“Findings of fact, whether based on oral or other evidence, must not be set aside
unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the
witnesses’ credibility.”); see also United States v. Raddatz, 447 U.S. 667, 681 n.7 (1980) (observing in the criminal
context “we assume it is unlikely that a district judge would reject a magistrate judge’s findings on credibility when
those findings are dispositive and substitute the judge’s own appraisal; to do so without seeing and hearing the
witnesses whose credibility is in question could well give rise to serious questions which we do not reach”).
282
Pierce, supra note 277, at 1236. Bearing in mind, however, that the power of magistrate judges is statutorily
conferred “subject to the district judge’s duty to ‘make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.’” Id. at 1237.
283
Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2003) (“Appellate review of credibility determinations,
especially when made by specialists such as the administrative law judges of the Social Security Administration, is
highly limited because the reviewing court lacks direct access to the witnesses . . . , lacks the trier's immersion in the
case as a whole, and when reviewing decisions by specialized tribunals also lacks the trier's experience with the type
of case under review.”).
284
Id.; see also Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44 WM. & MARY L. REV.
679, 708-09 (2002).
285
42 U.S.C. § 405(g). At least one magistrate judge has described the process of record review as “fact-finding”
that is “no different than a bench trial” and a question in a survey of U.S. magistrate judges yielding over 220
responses indicated that thirty percent (30%) would characterize their review of the record in social security cases as
answering a question of fact. Denlow, supra note 279, at 28, 40.
286
Richardson v. Perales, 402 U.S. 389 (1971) (internal quotations and citations omitted).
287
Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545 (3d Cir.
2003).
288
E.g., Pichette v. Barnhart, 2006 WL 1697524, at *2 (11th Cir. 2006); Lounsburry v. Barnhart, 464 F.3d 944, 947
(9th Cir. 2006); Choate v. Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Butts v. Barnhart, 388 F.3d 377, 384 (2d
Cir. 2004).
289
42 U.S.C. § 405(g).
290
Cox v. Apfel, 160 F.3d 1203, 1207 (9th Cir. 1998); Casias v. Sec’y of Health & Human Serv.’s, 933 F.2d 799,
800-801 (10th Cir. 1991); Gavin v. Heckler, 811 F.2d 1195, 1199 (9th Cir. 1987) (quoting Universal Camera Corp.
v. National Labor Relations Bd., 340 U.S. 474, 488 (1951)); Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984).
If good cause exists for new evidence is to be taken, it is to be before the Commissioner of Social Security. 42
U.S.C. § 1316(a)(4).
291
Casias, 933 F.2d at 800-801.
292
E.g., Murphy v. Colvin, 2014 U.S. App. LEXIS 14035, at *9 (7th Cir. 2014) (insufficiently specific reasoning in
evaluating credibility is reversible error). See also discussion of adjudicator reliance on the findings integrated
template and conclusory analysis. This is true at the administrative level as well. SSR 96-7p places a high
evidentiary burden on social security adjudicators to explain their findings about a claimant’s subjective symptoms.
See SSR 96-7p, supra note 26 (“The reasons for the credibility finding must be grounded in the evidence and
articulated in the determination or decision. It is not sufficient to make a conclusory statement that ‘the individual's
allegations have been considered’ or that ‘the allegations are (or are not) credible.’ It is also not enough for the
adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The
determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual's statements and the reasons for that weight. This documentation is
necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a wellreasoned determination or decision.”).
293
Sayers v. Gardner, 380 F. 2d 940, 943 (6th Cir. 1967) (describing “searching” review in social security cases
given a “great number of reversals” and cases “where the same errors have repeatedly pointed out” and describing
multiple tallies of remand rates of social security cases in excess of fifty percent (50%)).
294
Verkuil, supra note 284 at 708-709.
295
Letter from Carolyn W. Colvin, supra note 97.
296
On the other hand, it is worth noting, that the federal courts see only a miniscule percentage of social security
disability claims adjudicated at the state and federal levels. Additionally, judicial review is focused on a limited set
of decisions that discredit, rather than credit, a claimant’s subjective symptoms. See supra text accompanying note
94 (describing data indicating the positive influence claimant testimony has on benefit awards at the administrative
level).
281

297

20 CFR §§ 404.1529(c)(3) and 416.929(c)(3).
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012) (quotations omitted); see also Spruill v. Astrue,
299 Fed. Appx. 356, 358 (5th Cir. 2008) (“This explanation need not follow formalistic rules.”). But see Mickles v.
Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (applauding an ALJ’s subjective symptom evaluation comprehensively
considering each of the factors as “a refreshing mode of analysis [that] is precisely what I believe our cases have
been striving for.”)
299
20 U.S.C. §§ 404.1529(c)(3), 416.929(c)(3).
300
Search engine: LEXISAdvance; terms and connectors: social security and 96-7 or 96-7p; search within results:
pain! or credib! or subj!. An implicit assumption of this study is that this search string accurately describes the
population of cases involving SSR 96-7p. It may be that additional cases discuss credibility or subjective symptom
evaluation but do not cite the SSR 96-7p, and hence were not identified by this methodology.
301
Two results were excluded from the courts of appeals dataset because they were false positives, containing the
search terms but not referencing SSR 96-7p. One court of appeals result was a duplicate, from a case that was
initially unpublished but subsequently published. The list of district court cases was finalized in the first few days of
June. Some unpublished 2013 opinions were still being added to Lexis throughout 2014, so some 2013 cases were
likely not identified by this methodology.
302
Three remands were in cases with fibromyalgia. One fibromyalgia claim also involved chronic fatigue
syndrome, and one case involved a complex regional pain syndrome. Five cases involved headaches or migraines.
303
Remand reasons were identified using case law from the courts of appeals, since precedential appellate cases are
binding on all district courts within an appellate jurisdiction. The identified remand reasons are presented in the report
starting first with the remand reason identified in the most courts of appeals (seven circuits) and ending with the
remand reason identified in the fewest number of courts of appeals (three). Remand reasons occurring more than
twice were researched in all Circuits, an examination that extended to cases not identified through the case selection
methodology. After this review, only remand issues identified in more than three circuits were included. Because a
number of these decisions were unpublished, a remand reason was included only where it had precedential value in at
least one Court of Appeals. Note was made of other reasons for remand that occurred occasionally but not in more
than three Courts of Appeals or that occurred only in non-precedential cases. E.g., White, 312 Fed. Appx. 779, 78687 (6th Cir. 2009) (holding that claimant’s temporary relief was not necessarily inconsistent with disabling pain, and
that therefore ALJ’s determination that claimant could work was in error; also finding error in the ALJ’s determination
that the claimant had no trouble walking because the cane he used had not been medically prescribed). These
additional potential remand reasons were discarded after a preliminary review of district court cases indicated that
they did not commonly occur at that level of judicial review.
304
Judge Posner authored only three of the 34 Seventh Circuit opinions, resulting in three remands. His reasoning is
often endorsed in subsequent Seventh Circuit opinions. E.g.¸ Perkins v. Astrue, 498 Fed. Appx. 641, 644 (7th Cir.
2012) (per curiam order before Judges Manion, Kanne, and Tinder citing prior precedent on “meaningless
boilerplate”); Parker v. Astrue, 597 F.3d 920 (7th Cir. 2010) (Posner, J.) (describing “meaningless boilerplate” in
FIT template used by SSA adjudicator).
305
But see Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2003).
306
E.g., Mueller v. Astrue, 493 Fed. Appx. 772, 777 (7th Cir. 2012); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
2007); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. N.Y. 1998) (“‘a claimant need not be an invalid to be found
disabled’ under the Social Security Act”); Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir. 1996) (finding making
bed, preparing food, performing light housekeeping, grocery shopping, and visiting friends, unpersuasive reasons to
deny benefits).
307
20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i) (2014) (“[f]actors relevant to your symptoms, such as pain,
which we will consider include: (i) Your daily activities”); SSR 96-7p, supra note 26 (“the adjudicator must
consider . . . daily activities”).
308
Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
309
Id.
310
E.g., Orn, 495 F.3d at 625, 638: Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993).
311
20 C.F.R. §§ 404.1529(c)(3)(iv)-(v), 416.929(c)(3)(iv)-(v); see also SSR 82-59, Titles II and XVI: Failure to
Follow Prescribed Treatment, available at http://www.ssa.gov/OP_Home/rulings/di/02/SSR82-59-di-02.html..
312
SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYS., DI 23010.005(A)(2)(d), FAILURE TO FOLLOW
PRESCRIBED TREATMENT – POLICIES (July 10, 2012) (“[a] failure to follow prescribed treatment determination may
be made only where . . . evidence of record discloses that there has been refusal to follow prescribed treatment”).
313
E.g., Kalmbach v. Comm'r of Soc. Sec., 409 Fed. Appx. 852, 863-64 (6th Cir. 2011) (holding claimant’s
reluctance to pursue “aggressive” treatment not recommended for her condition should not have led the ALJ to
298

discount her credibility); Eakin v. Astrue, 432 Fed. Appx. 607, 612 (7th Cir. 2011) (finding that adverse credibility
determination should not have been based on claimant’s decision to treat arthritis with medication rather than
surgery, because there was no evidence suggesting that a medically recommended hip replacement would be
“clearly expected” to work and because the adjudicator did not develop the record regarding the claimant’s failure to
follow prescribed treatment).
314
20 C.F.R. §§ 404.1530(c), 416.930(c).
315
E.g., Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012); Penson v. Barnhart, 103 Fed. Appx. 843, 844 (5th
Cir. 2004); Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004).
316
See, e.g., Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir. 2013) (describing the FIT language as
“innocuous when, as here, the language is followed by an explanation for rejecting the claimant's testimony”);
Romero v. Colvin, 563 Fed. Appx. 618, at *5 (10th Cir. 2014) (citing prior precedent for the proposition that
“boilerplate is problematic only when it appears 'in the absence of a more thorough analysis”).
317
Orn v. Astrue, 495 F.3d 625, 645 (9th Cir. 2007).
318
Email from Rainbow Forbes, Appeals Officer, Office of Appellate Operations, Office of Disability Adjudication
and Review, Soc. Security Admin. to Stephanie Tatham, Att’y Advisor, Admin. Conf. of the U.S. (July 31, 2014)
(on file with author).
319
Bjornson, 671 F.3d at 640, 645 (“This ‘template’ is a variant of one that this court (and not only this court) had
criticized previously—that ‘after considering the evidence of record, the undersigned finds that claimant's medically
determinable impairments would reasonably be expected to produce the alleged symptoms, but that the claimant's
statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible’”).
320
Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011); Martinez v. Astrue, 630 F.3d 693, 696-97 (7th Cir. 2011);
Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir. 2010); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010).
321
Parker et. al. v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010).
322
E.g., Meadors v. Astrue, 370 Fed. Appx. 179, 183-84 (2d Cir. 2010); Nazzal v. Astrue, 316 Fed. Appx. 591, 592
(9th Cir. 2009); *Bjornson v. Astrue, 671 F.3d 640, 646 (7th Cir. 2012) (dicta noting potential tension between SSR
96-7p and a consultative examiner’s skepticism about a claimant’s pain).
323
SSR 96-7P, supra note 26
324
Nazzal, 316 Fed. Appx. at 591, 592
325
E.g. Burgess v. Astrue, 537 F.3d 117, 130 (2d Cir 2008).
326
20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).
327
Meadors, 370 Fed. Appx. at 183-84 (citation and quotation, including brackets, omitted).
328
Singletary v. Sec’y of Health, Educ. & Welfare, 623 F.2d 217, 219 (2d Cir. 1980).
329
SOC. SEC. ADMIN., HEARINGS, APPEALS, AND LITIG. LAW MANUAL I-5-4-13, STIEBERGER V. SULLIVAN att. a
(Feb. 21, 1997), available at http://www.ssa.gov/OP_Home/hallex/I-05/I-5-4-13.html#i-5-4-13-att-a; SOC. SEC.
ADMIN, PROGRAM OPERATIONS MANUAL SYS., DI 42586.081, SECOND CIRCUIT DISABILITY DECISIONS MANUAL STIEBERGER (Mar. 9, 2013); SOC. SEC. ADMIN, PROGRAM OPERATIONS MANUAL SYS., DI 42586.080, STIEBERGER
DISABILITY ADJUDICATION (Mar. 9, 2013).
330
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 96-7p, supra note 26.
331
Nunn v. Heckler, 732 F.2d 645, 648 (8th Cir. 1984) (citing Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir.
1983), for the proposition that a “claimant with a good work record is entitled to substantial credibility when
claiming an inability to work because of a disability.”); Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979)
(“when the claimant has a work record like Dobrowolsky's twenty-nine years of continuous work, fifteen with the
same employer his testimony as to his capabilities is entitled to substantial credibility.”).
332
Light v. SSA, 119 F.3d 789, 792 (9th Cir. 1997) (“ALJ may consider [claimant’s] reputation for truthfulness,
inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work
record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms
of which he complains”).
333
Schall v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998).
334
Id. at 502-503.
335
G. JACOBS ET AL., supra note 168 at 20-23.
336
Vasquez v. Astrue, 572 F.3d 586 (9th Cir. 2008); Varney v. Sec’y of Health & Human Serv’s, 859 F.2d 1396,
1398 (9th Cir. 1988); Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987); MacGregor v. Bowen, 786 F.2d 1050,
1054 (11th Cir. 1986) (“If the secretary refuses to credit [a claimant’s subjective pain] testimony he must do so
explicitly and give reasons for that decision. . . . Where he fails to do so we hold as a matter of law that he has
accepted the testimony as true.”).
337
Vasqyez, 572 F.2d at 586, 593 (citing Hammock v. Bowen, 879 F.2d 498 (9th Cir. 1989)—which applied the

credit-as-true rule and was remanded to SSA for further consideration—as support for its holding that the credit-astrue rule may be applied “even where application of the rule would not result in the immediate payment of
benefits”).
338
Id.; Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); Foote v. Chater, 67 F.3d 1553, 1562-63 (11th Cir.
1995); Holt v. Sullivan, 921 F.2d 1221, 1224 (11th Cir. 1991); Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir.
1990); Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988).
339
Data on the outcome of remanded cases is nearly a decade old, but between 1995 and 2005 sixty-six percent
(66%) of the 57,000 cases returned to SSA by district courts resulted in an award of benefits. U.S. GOV’T
ACCOUNTABILITY OFFICE, , GAO-07-331, SSA HAS TAKEN STEPS TO ADDRESS CONFLICTING COURT DECISIONS,
BUT NEEDS TO MANAGE DATA BETTER ON THE INCREASING NUMBER OF REMANDS 16 (2007).
340
Id.
341
We are very grateful for the time and advice of Professor Jonah Gelbach of the University of Pennsylvania Law
School, as well as Professors Alan Izenman of Temple University, Deborah Hensler of Stanford Law School, and
Joshua Fischman of Northwestern University School of Law.
342
Staff also sought to identify additional common reasons for remand, but none rose to the level of commonality
observed for issues identified through review of appellate decisions.
343
Many, but not all, of the analyzed remanded decisions were reviewed by a second Conference staffer for quality
control purposes. Findings are conservatively described in approximate percentages below to account for reasonable
subjectivity in interpretation and the potential for human error in cases we did not review a second time.
344
About twenty-five percent (25%) of remanded cases citing SSR 96-7p were returned to SSA for reasons other
than subjective symptom or credibility evaluation.
345
Supra Part IV, Subpart B: ODAR analysis of remand reasons.
346
E.g., Dygert v. Astrue, No. 09-CV-325, 2010 U.S. Dist. LEXIS 109954, at *20-21 (N.D.N.Y. Sept. 7, 2010)
(finding the credibility “assessment is tainted by the ALJ's failure to develop the record with regard to [the treating
physician's] opinion”); Cooper v. Astrue, 7-09-0062, 2010 U.S. Dist. LEXIS 75726, at *22 (N.D.N.Y. May 27,
2010) (“Because the Court has already concluded that the treating physician's opinions and the consultative
physician's opinions were improperly assessed, the ALJ's analysis of [the] subjective allegations is necessarily
flawed.”); Latchum v. Astrue, 2011 U.S. Dist. LEXIS 81795, at *8-9 (remanding because the treating source rule
problem “had a ripple effect on [the ALJ's] determination of [claimant’s] credibility”).
347
Horne v. Astrue, 2012 U.S. Dist. LEXIS 137317, at *15-16 (E.D. Okla. Sept. 7, 2012).
348
Beck v. Astrue, Civ. No. 6:11-714, 2012 U.S. Dist. LEXIS 72636, at *21 (D.S.C. May 2, 2012).
349
Felder v. Astrue, 2012 U.S. Dist. LEXIS 129384, at *40 (E.D.N.Y. Sept. 11, 2012); Valet v. Astrue, 2012 U.S.
Dist. LEXIS 7315, at *65 (E.D.N.Y. Jan. 23, 2012) (“Social Security Ruling (“S.S.R.”) 96-7p, 1996 SSR LEXIS 4
sets forth seven factors that an ALJ must consider in determining the credibility of a claimant's statements about his
or her symptoms and the effects of his or her impairments.”); Grosse v. Comm'r of Soc. Sec., No. 08-CV-4137
(NGG), 2011 U.S. Dist. LEXIS 3869, at *12-13 (E.D.N.Y. Jan. 14, 2011) (finding that ALJ committed legal error by
failing to apply factors two through seven).
350
Based on the Padro v. Colvin class-action litigation in the Eastern District of New York, we speculate that
subjective-symptom evaluation by some adjudicators whose actions are regularly reviewed by this court may have
prompted the application of a more stringent standard in that particular jurisdiction. We are hopeful that the review
and training agreed to by SSA in settling this litigation will obviate the need for special treatment in this jurisdiction
beyond the agreed upon period for prospective relief.
351
Magistrate recommendations in remanded cases were rejected six times but SSA’s decision was upheld in only
three of those cases. In the three remanded cases the magistrate judge’s recommendations were partially rejected,
and two were remanded due to flawed subjective symptom evaluation.
352
The high percentage of cases that eluded common categorization but still led to remand indicates the difficult
SSA faces in its data analysis endeavors.
353
E.g., Charon v. Astrue, 2011 U.S. Dist. LEXIS 59995, at *26-27 (D. Mass. June 6, 2011) (“The ALJ's conclusion
is not a fair characterization of Charon's daily activities.”); Young v. Astrue, 2010 U.S. Dist. LEXIS 143218, at *25
(N.D. Ohio Oct. 5, 2010) (“the ALJ's assertions that Plaintiff's daily activities of maintaining a residence and failing
to seek physical therapy for his pain are directly contradicted by the record.”).
354
E.g., Felder v. Astrue, 2012 U.S. Dist. LEXIS 129384, at *41-42 (E.D.N.Y. Sept. 11, 2012); Charon v. Astrue,
2011 U.S. Dist. LEXIS 59995, at *26-27 (D. Mass. June 6, 2011); MacKinley v. Astrue, 2011 DNH 86 (D.N.H. May
31, 2011).
355
E.g., Mecklenburg v. Astrue, 2009 U.S. Dist. LEXIS 108111, at *21-23 (W.D.N.Y. Nov. 19, 2009); Floyd v.
Astrue, 2010 U.S. Dist. LEXIS 54305, at *20 (S.D. Cal. Apr. 19, 2010) (“Plaintiff's ability to complete these simple

activities does not amount to clear and convincing evidence that the Plaintiff's testimony regarding his fatigue and
functional limitation is not credible.”).
356
Carroll v. Astrue, 2010 U.S. Dist. LEXIS 140643, at *27-28 (N.D. Ohio Jan. 28, 2010).
357
E.g., Hill v. Colvin, 2013 U.S. Dist. LEXIS 104629, at *20 (C.D. Cal. July 25, 2013) (“[T]he ALJ found that
plaintiff's daily activities are consistent with an RFC for medium work . . . . The ALJ in the instant case failed to
make any specific findings relating to plaintiff's daily activities or their transferability to the work place.”); Herman
v. Astrue, 2013 U.S. Dist. LEXIS 20256, at *53-55 (D.S.D. Jan. 8, 2013); Hollister v. Colvin, 2013 U.S. Dist.
LEXIS 26522, at *23 (N.D. Ind. Feb. 26, 2013) (rejecting third part testimony after unexplained adverse credibility
determination).
358
Calhoun v. Astrue, 821 F. Supp. 2d 435 (D. Mass. Oct. 28, 2011).
359
Id.
360
Rinaldi-Mishka v. Astrue, 2013 U.S. Dist. LEXIS 98512, at *36-37 (N.D. Ill. July 8, 2013); Valet v. Astrue, 2012
U.S. Dist. LEXIS 7315, *66 (E.D.N.Y. Jan. 23, 2012). But see Hill v. Colvin, 2013 U.S. Dist. LEXIS 104629, at
*18-19 (C.D. Cal. July 25, 2013) (citing Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) for the proposition that
“Evidence of ‘conservative treatment’ is sufficient to discount a claimant's testimony regarding severity of an
impairment.”).
361
E.g., O’Neal v. Comm’r of Soc. Sec., 2013 U.S. Dist. LEXIS 122742, at *14-16 (E.D. Mich. Aug. 5, 2013)
(“while the ALJ acknowledged Plaintiff's financial constraints, he did not appear to factor them into the credibility
determination as required by SSR 96-7p”); Wieland v. Astrue, 2012 U.S. Dist. LEXIS 135259, at *6 (E.D. Wis.
Sept. 21, 2012) (“An ALJ may not rely on lack of treatment without exploring why treatment was infrequent.”);
Eschmann v. Astrue, 2011 U.S. Dist. LEXIS 52061, at *43-44 (E.D.N.Y. May 16, 2011) (failed to consider adverse
side effects of prescribed medication).
362
Dickens v. Astrue, 2011 U.S. Dist. LEXIS 84359, at *8 (E.D.N.C. July 28, 2011) (citing Preston v. Heckler, 769
F.2d 988, 990-991 (4th Cir. 1985)).
363
Sindt v. Colvin, 2013 U.S. Dist. LEXIS 154472, at *13 (W.D. Wash. Sept. 27, 2013) (citing to Regennitter v.
Comm'r Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999) for the proposition that “we have particularly
criticized the use of a lack of treatment to reject mental complaints both because mental illness is notoriously
underreported and because 'it is a questionable practice to chastise one with a mental impairment for the exercise of
poor judgment in seeking rehabilitation.’”); Williams v. Astrue, 2011 U.S. Dist. LEXIS 90111, at *13-14 (W.D.
Wash. July 20, 2011).
364
E.g., Neal v. Colvin, 2013 U.S. Dist. LEXIS 116789, at *15-16 (S.D. Ind. Aug. 19, 2013); Royal v. Astrue, 2012
U.S. Dist. LEXIS 160366, Civ. 5:11-456, at *24-26 (N.D.N.Y. Oct. 2, 2012).
365
E.g., Little v. Colvin, 2013 U.S. Dist. LEXIS 82741, *19-23 (E.D. Va. Mar. 12, 2013); Horne v. Astrue, 2012
U.S. Dist. LEXIS 137317, at *15-16 (E.D. Okla. Sept. 7, 2012) (“The problem with the ALJ's analysis of the
claimant's credibility (apart from vagueness) is that he should have first evaluated the claimant's testimony (along
with all the other evidence) according to the guidelines and only then formulated an appropriate RFC, not the other
way around, i.e., the ALJ apparently judged the credibility of the claimant's testimony by comparing it to a predetermined RFC.” (emphasis in original)); Smith v. Comm'r of Soc. Sec., 2011 U.S. Dist. LEXIS 147025, at *27-28
(D. Vt. Dec. 20, 2011).
366
E.g., Vujnovich v. Astrue, No. 2-10-43, 2011 U.S. Dist. LEXIS 32606, at *30-31 (N.D. Ind. Mar. 28, 2011)
(remanding because the “ALJ's credibility determination consists entirely of one sentence of boiler-plate analysis”).
367
E.g., Little v. Colvin, No. 2-12-300, 2013 U.S. Dist. LEXIS 82741, at *18-20 (E.D. Va. Mar. 12, 2013) (citing
Bjornson, 671 F.3d at 644-645); Alvarez v. Colvin, No. 12-6205, 2013 U.S. Dist. LEXIS 181287, at *20-21 (D.N.J.
Dec. 27, 2013); Smith v. Comm'r of Soc. Sec., No. 2-10-176, 2011 U.S. Dist. LEXIS 147025, at *28 (D. Vt. Dec. 20,
2011).
368
E.g., Rich v. Comm'r of Soc. Sec., No. 1-12-255, 2013 U.S. Dist. LEXIS 135232, at *15-16 (W.D. Mich. Sept 23,
2013) (remanding for unrelated reasons, but rejecting claimant’s boilerplate argument); Dante v. Colvin, No. 124381, 2013 U.S. Dist. LEXIS 116076, at *37-39 (N.D. Ill. Aug. 16, 2013) (rejecting claimant’s boilerplate
argument).
369
E.g., Parton v. Astrue, No. 10-294, 2011 U.S. Dist. LEXIS 110966, at *15-16 (E.D. Okla. Sept. 28, 2011)
(remanding and criticizing the discrediting opinion for listing the credibility factors set forth in SSR 96-7p and the
symptom evaluation regulations and then failing to document their application to the evidence).
370
Folino v. Astrue, No. 11-3556, 2013 U.S. Dist. LEXIS 18437, at *21-22 (N.D. Ill. Feb 11, 2013); see also, e.g.,
Morrison v. Astrue, No. 08-2048, 2010 U.S. Dist. LEXIS 115190, at *13 (E.D.N.Y. Oct. 27, 2010); Horton v.
Astrue, No. 2-09-2055, 2010 U.S. Dist. LEXIS 121663, at *11-12 (D.S.C. Oct. 26, 2010) (“this court has nothing to
review”).

371

Kiely v. Astrue, No. 3-10-1079, 2011 U.S. Dist. LEXIS 123015, at *3 (D. Conn. Oct. 25, 2011).
E.g., Skillman v. Astrue, No. 08-6481, 2010 U.S. Dist. LEXIS 61349, at *19-20 (W.D.N.Y. June 18, 2010)
(remanding because the discrediting opinion did not elaborate on the stock FIT language).
373
Clauss v. Astrue, Civ No. 11-cv-03330-MSK, 2013 U.S. Dist. LEXIS 45513, at *23 (D. Colo. Mar. 29, 2013).
374
Id. at *24.
375
Caffrey v. Astrue, 2009 U.S. Dist. LEXIS 57428, at *16, *19 (S.D.N.Y. June 30, 2009) (rejecting adverse
credibility finding premised on determination by ALJ that the claimant’s allegations “are not found to be
corroborated by objective medical evidence to the degree purported”) (emphasis in original); see also Ramirez v.
Astrue, 2012 U.S. Dist. LEXIS 153862, at *12-13 (C.D. Cal. 2012); Kemp v. Astrue, 2011 U.S. Dist. LEXIS
107497, at *30-32 (D.S.C. Sept. 22, 2011) (remanding for a second time an ALJ’s opinion for relying on a lack of
objective medical evidence in discrediting claimant, noting limited revision to prior opinion and verbatim
replacement of some portions of the prior decision).
376
Bates v. Comm'r of Soc. Sec., 2010 U.S. Dist. LEXIS 141005, at *12-13 (N.D. Ohio Dec. 14, 2010).
377
Small v. Astrue, 2010 U.S. Dist. LEXIS 116632, at *33 (E.D. Pa. Sept. 30, 2010) (remanding in part because the
ALJ “failed to discuss which subjective complaints he was rejecting and on what basis and, instead, summarily
stated that the objective evidence did not support plaintiff's subjective complaints”).
378
Herman v. Astrue, 2013 U.S. Dist. LEXIS 20256, at *56 (D.S.D. Jan. 8, 2013) (finding the credibility
determination to be unsupported by substantial evidence because “the ALJ also discounted Herman's credibility
because of the lack of objective medical evidence. . . but these shortcomings are the result of the ALJ's own failure
to develop the record.”).
379
Sims v. Astrue, 2012 U.S. Dist. LEXIS 29710, at *7-10 (C.D. Cal. Mar. 6, 2012)
380
Jones v. Astrue, 2011 U.S. Dist. LEXIS 28187, at *23, 21-24 (W.D. Wash. Feb. 25, 2011) (noting that
“fibromyalgia is disease that is notable for its lack of objective diagnostic techniques” and quoting Green-Younger v.
Barnhart, 335 F.3d 99, 109 (2d Cir. 2003), for the proposition that “‘the absence of swelling joints or other
orthopedic and neurologic deficits is no more indicative that the patient's fibromyalgia is not disabling than the
absence of a headache is an indication that a patient's prostate cancer is not advanced’”).
381
Baker v. Colvin, 2013 U.S. Dist. LEXIS 150876, at *26-27 (W.D. Va. Sept. 24, 2013) (“In point of fact, the Law
Judge assigned little weight to Dr. Aaron's opinion in large part because he believed it was based on plaintiff's
subjective complaints, which he found were not entirely credible, rather than the objective evidence of record. (R.
26-27.) It is on this point, and on the Law Judge's examination of the VE, that the undersigned has concerns.”);
Davis v. Astrue, No. 2-08-01101, 2010 U.S. Dist. LEXIS 59826, at *17-18 (S.D.W.V. May 20, 2010) (questioning
ALJ’s disregarding physician’s reports based on symptoms and substituting his own judgment). But see Williams v.
Astrue, 2012 U.S. Dist. LEXIS 48682 (W.D. Wash. Mar. 14, 2012) (holding “the ALJ did not err in rejecting at least
in part Dr. Brown's findings based on the ALJ's determination that plaintiff was not fully credible regarding her
subjective complaint”).
382
E.g., Kiely v. Astrue, 2011 U.S. Dist. LEXIS 123015, at *3-4 (D. Conn. Oct. 25, 2011) (discussing the “mountain
of doctor's reports recording Ms. Kiely's consistent complaints of gastrointestinal problems”).
383
20 C.F.R. §§ 404.1529(c), 416.929(c).
384
E.g., Satterfield v. Astrue, 2011 U.S. Dist. LEXIS 125541, at *13 (D. Utah Oct. 31, 2011) (finding the
adjudicator’s pain analysis to be flawed in part due to failure to consider two Global Assessment of Functioning
scores given by a physician); Osborn v. Astrue, 2010 U.S. Dist. LEXIS 115139, at *33-35 (W.D. Wash. Oct. 6,
2010) (noting clinical findings of knee swelling and locking that should have been considered prior to rejecting the
plaintiff’s testimony regarding the same).
385
E.g., Beier v. Colvin, 2013 U.S. Dist. LEXIS 36724, *29 (N.D. Ind. Mar. 18, 2013) (“Because the ALJ fails to
discuss the numerous, favorable treatment records in support of Plaintiff's ongoing allegations, the ALJ has not built
a logical bridge between the evidence and his decision.”); Brown v. Astrue, 2012 U.S. Dist. LEXIS 179240, at * 2627 (N.D. Ill. Dec. 19, 2012) (finding that the “ALJ's review of the record shows a significant oversight of Brown's
treatment records. The ALJ claimed that no evidence supported Brown's testimony that she had sought chiropractic
care for cervical spine pain. (R. 23). In reality, the record contains eighty-one pages of treatment notes by
chiropractor Dr. Timothy Hammer for treatments extending from March 2009 through July 2010.”); Hua v. Astrue,
2009 U.S. Dist. LEXIS 20345, at *23 (D. Colo. Mar. 2, 2009) (finding “the ALJ's decision makes no reference to. . .
all the different medications the Plaintiff has tried to relieve her migraines. In fact, Plaintiff has been prescribed
Ultram, Tylenol # 3, Darvocet, Fioricet, Propoxyphene and Disalsid (Tr. 187, 194, 199, 203, 209, 220). The ALJ
also did not address. . . the frequency of Plaintiff's medical contacts for her migraines. The record discloses 29 visits
by Plaintiff to Dr. Tran for treatment of her headaches from May 2002 to March 2007 (Tr. 194-95, 199, 202-04,
205-06, 209-12, 219-25, 227). This oversight by the ALJ was substantial, as the agency has recognized that
372

‘[p]ersistent attempts by the individual to obtain relief of pain or other symptoms …may be a strong indication that
the symptoms are a source of distress to the individual and generally lend support to an individual's allegations of
intense and persistent symptoms.’ Soc. Sec. Ruling 96-7p…”).
386
E.g., Gutierrez v. Astrue, 2013 U.S. Dist. LEXIS 316, at *13-14 (D. Or. Jan. 2, 2013) (“Mr. Gutierrez cites
numerous instances in the medical record addressing his inability to understand diabetic diet instructions.”)
387
E.g., Jones v. Astrue, 2011 U.S. Dist. LEXIS 89366, *27 (E.D. Tenn. July 20, 2011) (concluding that “this case
should be remanded so that the ALJ can properly evaluate Plaintiff's credibility by (1) explaining his reasoning, and
(2) appropriately addressing the credibility findings made by Mr. Porter, Dr. Sachs, and Dr. Walwyn.”) But see SSR
96-7p, supra note 26 (stating that findings by State agency consultants and other program physicians and
psychologists on the credibility of the individual’s statements about limitations or restrictions due to symptoms are
findings of fact that should be weighed under the applicable regulations and policy rulings governing nonexamining
sources).
388
E.g., Alexander v. Astrue, 2011 U.S. Dist. LEXIS 7924, at *15-16 (W.D. La. Jan. 6, 2011) (stating that an ALJ
may not “pick and choose” only the evidence that supports his or her opinion and finding that the ALJ “failed
ignored multiple diagnoses and medications for management of neuropathy, and instead relied on a single medical
opinion that was itself issued without the benefit of reviewing any other medical records.”); Damm v. Comm'r of
Soc. Sec., 2010 U.S. Dist. LEXIS 84996, at *21-26 (D.N.J. Aug. 18, 2010).
389
E.g., Penland v. Astrue, 2011 U.S. Dist. LEXIS 144616, at *17 (W.D.N.C. Sept. 19, 2011) (credibility finding
strongly contraindicated by uncontroverted objective medical evidence); Gol v. Comm'r of Soc. Sec., 2010 U.S. Dist.
LEXIS 22787, at *39-51 (M.D. Fla. Mar. 11, 2010).
390
Dygert v. Astrue, 2010 U.S. Dist. LEXIS 109954, at *20-21 (N.D.N.Y Sept. 7, 2010) (noting “tainted” credibility
assessment as a result of flawed application of treating physician rule); Cooper v. Astrue, 2010 U.S. Dist. LEXIS
75726, at *22 (N.D.N.Y May 27, 2010) (“Because the Court has already concluded that the treating physician's
opinions and the consultative physician's opinions were improperly assessed, the ALJ's analysis of Plaintiff's
subjective allegations is necessarily flawed.”). In one case the court made it clear that an adjudicator may not
disregard a treating source’s medical opinion because he or she makes an adverse credibility determination about the
claimant. Peters v. Astrue, 2010 U.S. Dist. LEXIS 101044, at *22 (N.D. Ga. Sept. 23, 2010).
391
E.g., Felder, 2012 U.S. Dist. LEXIS 129384, at *44 (E.D.N.Y. Sept. 11, 2012); Andrews v. Astrue, No. 7-10 -1202,
2012 U.S. Dist. LEXIS 117956, at *36-37 (N.D.N.Y. Aug 21, 2012); Sopher v. Astrue, No. 10-184, 2011 U.S. Dist.
LEXIS 87381, at *34-36 (W.D. Pa. Aug. 8, 2011); McKnight v. Astrue, No. 4-10-02126, 2011 U.S. Dist. LEXIS
122349, at *102 (M.D. Pa. Oct. 21, 2011); Deweese v. Astrue, No. 10-3483, 2011 U.S. Dist. LEXIS 145548, at *5
(W.D. Mo. Dec. 19, 2011); Jefferson v. Astrue, No. 4-11-921, 2012 U.S. Dist. LEXIS 145988, at *42 (E.D. Mo. Oct.
10, 2012).
392
E.g., Jeffries v. Astrue, No. 3-10-1405, 2012 U.S. Dist. LEXIS 11995, at *76-77 (S.D.W. Va. Feb. 1, 2012)
(“Although Claimant's work history is commendable, it is not sufficient in and of itself to entitle Claimant to
‘substantial credibility’ given the lack of evidence corroborating Claimant's testimony.”); Melancon v. Astrue, No. 611-01389, 2012 U.S. Dist. LEXIS 106882, at *19 (W.D. La. June 6, 2012) (declining to follow the Second, Third and
Eighth Circuits).
393
E.g., Poe v. Astrue, 2009 U.S. Dist. LEXIS 94036, at *38-39 (D. Ariz. 2009) (“As an initial matter, Plaintiff has a
solid forty-five-year work record, which bolsters his credibility regarding his inability to work.”).
394
Bazile v. Apfel, 113 F. Supp. 2d 181, 190 (D. Mass. 2000) (finding the First Circuit “explicitly stopped short” of
adopting the credit-as-true rule, citing Nguyen v. Chater, 172 F.3d 31, 36 (1st Cir. 1999) and Corchado v. Shalala,
953 F. Supp. 12, 16 (1st Cir. 1996)); Hoffman v. Chater, No. 94-4183, 1995 U.S. Dist. LEXIS 12992, at *5-6 (D.
Kan. Aug. 14, 1995) (finding no Tenth Circuit authority for the credit-as-true rule, declining to follow Eleventh
Circuit precedent).
395
E.g., Byrd v. Astrue, No. 09-781, 2010 U.S. Dist. LEXIS 99489, at *33-34 (S.D. Ala. Sept. 21, 2010) (finding
that the credit-as-true rule is applicable when statements are ignored, but not when statements are improperly
discounted).
396
Iniguez v. Astrue, No. 09-1902, 2010 U.S. Dist. LEXIS 78750, at *12-13 (C.D. Cal. Aug. 3, 2010) (citing
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) and Smolen v. Chater, 80 F.3d 1273, 1283 (9th Cir. 1996),
characterizing “specific, clear, and convincing reasons” as a “high standard”).
397
In five W.D.N.Y. cases in the sample, nearly twenty percent (20%) of remands with awards, U.S. District Judge
Telesca entered a direct award of benefits.
398
SOC. SEC. ADMIN., HEARINGS, APPEALS, AND LITIG. LAW MANUAL I-5-4-71, PADRO ET AL. V. COLVIN (May 20,
2014), available at http://www.ssa.gov/OP_Home/hallex/I-05/I-5-4-71.html.
399
Supra notes 254-264 and accompanying text.

400

Fluker v. Comm'r of Soc. Sec., No. 12-10612, 2013 U.S. Dist. LEXIS 41722, at *46-47 (E.D. Mich. Feb. 11,
2013) (magistrate judge recommending remand for further proceedings due to bias), rejected, in part, adopted, in
part, No. 12-10612, 2013 U.S. Dist. LEXIS 36695, at *11-12 (E.D. Mich. Mar. 18, 2013) (adopting finding of bias,
remanding for the sole purpose of calculating benefits award). See also Nix v. Astrue, No. 07-CV-344, 2009 U.S.
Dist. LEXIS 98356, at *18-19 (W.D.N.Y. Oct. 22, 2009) (finding “the ALJ was curt” and unfairly labeled the
claimant “histrionic”); Rodriguez v. Astrue, No. 09-1810, 2010 U.S. Dist. LEXIS 51979, at *37 (N.D. Ill. May 26,
2010) (criticizing ALJ for characterizing claimant as “dramatic” and “exaggerating”).
401
See Hearings, Appeals, and Litig. Law Manual I-3-1-71, ALLEGATIONS OF UNFAIRNESS, PREJUDICE, PARTIALITY,
BIAS, MISCONDUCT, OR DISCRIMINATION BY ADMINISTRATIVE LAW JUDGES (ALJ) (June 17, 2014) (authorizing the
Appeals Council to refer cases alleging bias to the Division of Quality Service for handling), available at
http://www.socialsecurity.gov/OP_Home/hallex/I-03/I-3-1-25.html (last visited Sept. 02, 2014); Hearings, Appeals,
and Litig. Law Manual I-1-8, DIVISION OF QUALITY SERVICE (varying dates) (discussing the Division of Quality
Service’s role in reviewing such allegations of bias), available at http://www.socialsecurity.gov/OP_Home/hallex/I01/I-1-8.html (last visited Sept. 02, 2014).
402
20 C.F.R. §§ 404.1529, 416.929.
403
20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).
404
See G. JACOBS ET AL., supra note 168.
405
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
406
20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).
407
Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984); 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
408
20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i).
409
20 C.F.R. §§ 404.1529(c)(3)(v)-(vi), 416.929(c)(3)(v)-(vi).
Part VI References:
410

E.g., Gregory C. Flatt, All in Your Head: A Comprehensive Approach to Somatoform Disorders in Adult
Disability Claims, 87 WASH. U. L. REV. 1397 (2009-10).
411
E.g., Lawrence T. King and Traci Reid-Miodrag, “I Feel Your Pain”: Visible Evidence of Invisible Phenomena
and Other Tales of Round Pegs and Square Holes, 32 AM. J. TRIAL ADVOC. 235 (2008); Adam J. Kolber, Pain
Detection and the Privacy of Subjective Experience, 33 AM. J.L. & MED. 433 (2007); Michael Finch, Law and the
Problem of Pain, 74 U. CIN. L. REV. 285 (2005-2006).
412
Elizabeth Schneider and Joseph Simeone, Pain and Disability Under Social Security: Time for a New Standard,
34 J. OF HEALTH L. 459 (2001) [pincite unavailable on LexisNexis].
413
Id. at [pincite unavailable on LexisNexis].
414
Earlier academic literature also describes a history of inconsistent case law and Professor Dubin’s four-part
framework for categorizing approaches to subjective symptom evaluation is particularly helpful for understanding
the potential for conflict. See Jon C. Dubin, Poverty, Pain, and Precedent: The Fifth Circuit’s Social Security
Jurisprudence, 25 St. Mary’s L.J. 81, 111-12 (1993-1994).
415
SSR 96-7p, supra note 26.
416
Christopher E. Pashler, Mirror, Mirror on the Wall: Stigma and Denial in Social Security Disability Hearings, 43
U. MEM. L. REV. 419, 576-76 (2012).
417
Clara W. Dworsky, What to Do about Bias: Social Security Q&A, 12 EXPERIENCE 44 (2002).
418
Id. at 45 (citing Miller v. Shalala, 953 F.2d 417 (8th Cir. 1992) and Sarcher v. Chater, 78 F.3d 305 (7th Cir.
1996).
419
Jason D. Vendel, Note, General Bias and Administrative Law Judges: Is There a Remedy For Social Security
Claimants?, 90 CORNELL L. REV. 769, 778 (2005).
420
Id. at 780 (quoting Grant v. Comm'r, 111 F.Supp. 2d 556, 558-59 (M.D. Pa. 2000)).
421
Grant v. Comm'r, 111 F.Supp. 2d 556, 570 (M.D. Pa. 2000) (citing Ventura v. Shalala, 55 F.3d 900, 904 (3d Cir.
1995) and Hummel v. Heckler, 736 F.2d 91, 92 (3d Cir. 1984) for the proposition that “even if the record was totally
devoid of evidence supporting a finding of disability, ‘the bias of the adjudicator might still be a ground for setting
aside a determination adverse to the claimant, for we have repeatedly held that in Social Security disability claim
hearings the administrative law judge has an affirmative obligation to assist the claimant in developing the facts.’”).
422
Id. at 566-69.
423
Supra notes 104-105 and accompanying text.
424
In a non-comprehensive review Conference staff identified 11 congressional hearings on social security disability
issues in 2011, 10 in 2012, and 11 in 2013, and 6 in the first half of 2014.

Congressional Research Service reports are generally not available to the public on the agency’s website.
Government Accountability Office and SSA’s OIG publications provided general background information,
including on the history of subjective symptom evaluation at SSA, and major findings reported by these agencies
have been incorporated throughout the report.
426
E.g., The Challenges of Achieving Fair and Consistent Disability Decisions: Hearing Before the Subcomm. on
Soc. Sec. of the H. Comm. on Ways and Means, 113th Cong. 4 (2013) (statement of Trudy Lyon-Hart, President of
the Nat’l Council of Disability Determination Dirs., describing the complexity of symptom evaluation); The
Challenges of Achieving Fair and Consistent Disability Decisions: Hearing Before the Subcomm. on Soc. Sec. of the
H. Comm. on Ways and Means, 113th Cong. 6 (2013) (statement of David G. Hatfield, A.L.J. (ret.) describing the
subjective nature of aspects of social security decisionmaking, including symptom evaluation); Social Security
Disability Claims Backlogs: Joint Hearing Before the Subcomm. on Income Sec. and Family Support and Subcomm.
on Soc. Sec. of the H. Comm. on Ways and Means, 111th Cong. 16 (2010) (statement of Nancy Shor, Exec. Dir.,
Nat’l Org. of Soc. Sec. Claimants’ Representatives, recommending training on the evaluation of subjective
symptoms); Soc. Sec. Disability Backlogs: Hearing Before the Subcomm. on Soc. Sec. of the H. Comm. on Ways and
Means, 110th Cong. 44 (2007) (statement of Nancy Shor, Exec. Dir., Nat’l Org. of Soc. Sec. Claimants’
Representatives commenting that pain evaluation at the state disability determination services level is insufficient).
427
MINORITY STAFF OF PERMANENT SUBCOMM. ON INVESTIGATIONS OF THE S. COMM. ON HOMELAND SEC. AND
GOV’T AFFAIRS, 112TH CONG., SOCIAL SECURITY DISABILITY PROGRAMS: IMPROVING THE QUALITY OF BENEFIT
AWARD DECISIONS 14-15 (Comm. Print 2012).
428
Id. at 4, 22.
429
Id. at 65-67.
430
See Social Security Disability Programs: Improving the Quality of Benefit Award Decisions: Hearing Before the
Permanent Subcomm. on Investigations of the S. Comm. on Homeland Sec. and Gov’t Affairs, 112th Cong. 50-51,
900 (2012) (statements of Sen. Coburn, Member, Permanent Subcomm. on Investigations, questions from
Subcomm. Staff); SOC. SEC. ADMIN., OFFICE OF THE INSPECTOR GEN., CONGRESSIONAL RESPONSE REPORT: THE
SOCIAL SECURITY ADMINISTRATION’S POLICY ON SYMPTOM VALIDITY TESTING IN DETERMINING DISABILITY
CLAIMS, A-08-13-23094, app. at D-1 (Sept. 2013) (responding to an inquiry by Sen. Coburn); STAFF OF S. COMM.
ON HOMELAND SEC. AND GOV’T AFFAIRS, 113TH CONG., HOW SOME LEGAL, MEDICAL, AND JUDICIAL
PROFESSIONALS ABUSED SOCIAL SECURITY DISABILITY PROGRAMS FOR THE COUNTRY’S MOST VULNERABLE: A
CASE STUDY OF THE CONN LAW FIRM 8 (Comm. Print 2013) (“The Office of Appellate Operations, Quality
Division, should provide training to all ALJs regarding adequate articulation in opinions of legal determinations.
This training should emphasize the proper way to analyze and address these issues as required by law, regulation
and agency guidance, including how to address obesity and drug and alcohol abuse.”).
431
Protecting Social Security Disability Act of 2014, S. 3003, 113th Cong. § 207(d)-(e) (2014).
432
Staff also searched the websites of claimant and administrative law judge organizations for relevant materials;
none were identified.
433
The AALJ was founded in 1971 as a professional organization. It became the SSA ALJ union in 1999; currently
its membership includes eighty percent (80%) of SSA ALJs. See AALJ, Mission & History,
http://www.aalj.org/mission-history (last visited July 30, 2014).
434
The FALJC is a professional organization that represents the interests of the federal administrative judiciary
across the federal government; membership is limited to current or retired administrative law judges. See FALJC,
Membership, http://www.faljc.org/membership/ (last visited July 30, 2014).
435
Statement of Trudy Lyon-Hart, President of the Nat’l Council of Disability Determination Dirs. supra note 426;
Letter from Trudy Lyon-Hart, President of the Nat’l Council of Disability Determination Dirs., to Rep. Sam Johnson,
Chairman of the Subcomm. on Soc. Sec. of the H. Comm. on Ways and Means (May 23. 2013) (on file with the
author).
436
However, two individual ALJs recommended that disability decisions be made exclusively on the basis of
objective medical evidence alone, rather than after consideration of subjective symptoms. Letter from Admin. L. J.
Member One, to Stephanie Tatham, Att’y Advisor Admin. Conf. of the U.S. (June 9, 2014) [hereinafter ALJ
Member One]; Letter from Admin. L. J. Member Two to Stephanie Tatham, Att’y Advisor Admin. Conf. of the U.S.
(June 9, 2014) [hereinafter ALJ Member Two]. One ALJ felt that the existing regulations and rulings place “an
unreasonable burden on the ALJs adjudicating the case.” ALJ Member One at 1-2.
437
Letter from Cynthia Berger, President, Bd. Of Dirs., Nat’l Org. of Soc. Sec Claimants’ Reps. and Barbara
Silverstone, Exec. Dir. Nat’l Org. of Soc. Sec. Claimants’ Reps., to Stephanie Tatham,
Att’y Advisor Admin. Conf. of the U.S., at 2 (June 9, 2014) [hereinafter NOSSCR Response].
438
Letter from Nat’l Ass’n of Disability Reps., to Stephanie Tatham, Att’y Advisor Admin. Conf. of the U.S., at 1
425

(June 9, 2014) [hereinafter NADR Response].
439
Letter from Jeffrey Price, President, National Association of Disability Examiners, to Stephanie Tatham,
Attorney Advisor, Admin. Conf. of the U.S., at 1 (Nov. 4, 2014) [hereinafter NADE Response].
440
Letter from Thomas M. Susman, Director, Governmental Affairs Office, American Bar Association, to Paul R.
Verkuil, Chairman, Admin. Conf. of the U.S (July 2, 2014).
441
NOSSCR Response at 9.
442
NADE Response at 3.
443
NADR Response at 3.
444
Id. at 4.
445
NOSSCR Response at 12.
446
Id.
447
Letter from Admin. L. J. Member Three, to Stephanie Tatham, Att’y Advisor Admin. Conf. of the U.S. (June 9,
2014) [hereinafter ALJ Member Three].
448
Id.
449
NADE Response at 2.
450
NADR Response at 3.
451
NADE Response at 2.
452
ALJ Member Three at 5.
453
ALJ Member Two at 1.
454
Ass’n of Admin. L. J. National Executive Board, Suggested Responses to ACUS Questionnaire 2 (June 15,
2014).
455
A number of additional suggestions for improving disability adjudication were outside the limited focus of this
report but may be reviewed in the responses at Appendix G: Stakeholder Questionnaire Responses. NOSSCR
supports retention of the treating physician rule, but urged SSA to expand its definition of “acceptable medical
source” to include other primary treating sources. The AALJ and an individual ALJ urged SSA to either provide
advocates for the government during disability hearings or permit more vigorous questioning of claimants. NADR
suggested that SSA consider a new musculoskeletal medical listing given evidence of three or more spinal surgeries.
NADE urged SSA to reconsider its policy on acceptable medical sources in determining whether a Medically
Determinable Impairment exists. [*Note: this footnote has been amended to accurately reflect NOSSCR’s views.]
Part VII References:
456

Of course, any policy is unlikely to garner universal acceptance. See note 436 identifying contrary personal
opinions of two individual ALJ’s.
457
Social Security Disability Benefit Reform Act of Oct. 9, 1984, Pub. L. No. 98-460 § 3(a)(3), 98 Stat. 1794
(codified as amended in scattered sections of 20 U.S.C.).
458
National Council of State Housing Agencies, Congress Passes FY 2014 Omnibus Appropriations Bill,
http://www.ncsha.org/blog/congress-passes-fy-2014-omnibus-appropriations-bill (Jan. 17, 2014) (describing funding
of $9.9 billion for Project-based Section 8 programs and $29.2 billion for vouchers). Of course, only a percentage of
these benefits accrue to persons with disabilities.
459
24 CFR 5.403 Person with disabilities (1)(i).
460
20 C.F.R. §§ 404.1508, 416.908. For the sake of clarity, the Section 404 regulations are cited in text. It is
notable that SSA has adopted two separate—three if you count the Railroad Retirement Board—sets of regulations
on symptom evaluation that are identical. The separate sets of citations lead to duplicative case law research and
create the potential for conflicting regulatory interpretations. This is particularly true for the identical regulations of
the Railroad Retirement Board, which is a separate independent federal agency that presumably is entitled to
deference in the interpretation of its own regulations. A better approach might be to incorporate identical regulatory
provisions by reference rather than repetition.
461
45 Fed. Reg. 55,566 (Aug. 20, 1980), amended by 56 Fed. Reg. 36,954 (Aug. 1, 1991).
462
45 Fed. Reg. 55,566, 55,571 (Aug. 20, 1980).
463
20 C.F.R. §§ 404.1528, 416.928.
464
5 U.S.C. § 553.
465
See supra notes 281-284 and accompanying text.
466
See Part V, Subpart E: Case law conclusions.
467
The National Academies, Current Projects System: Project Information, Project Title Psychological Testing,
Including Symptom Validity Testing, for Social Security Administration Disability Determinations, IOM-BSP-13-

09, http://www8.nationalacademies.org/cp/projectview.aspx?key=49622 (last accessed Aug. 1, 2014).
468
This was recommended also by the 1986 Commission on the Evaluation of Pain regarding initial development of
these materials. DAPPER, supra note 56.
469
Supra notes 140-142 and accompanying text.
470
Mar. 13, 2014 email, supra note 225.
471
See Appendix C: The Electronic Claims Analysis Tool.
472
Supra notes 149-151.
473
See, e.g., G. JACOBS ET AL., ASSESSING THE IMPACT OF THE REGION I PILOT PROGRAM, Report to the Soc. Sec.
Admin. (2013) (examining the volume and timing of evidentiary submissions relative to hearing dates), available at
https://www.acus.gov/report/assessing-impact-region-i-pilot-program.
474
Social Security Disability Programs: Improving the Quality of Benefit Award Decisions: Hearing before the
Permanent Subcomm. on Investigations of the S. Comm. on Homeland Sec. and Gov’t Affairs, 112th Cong. 1, 2
(2012) (statement of J. Patricia Jonas, Exec. Dir., Office of Appellate Operations, Office of Disability and Rev., Soc.
Sec. Admin.).
475
Id. at 1.
476
Id.