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Disability Determination and the Role of Pain The Social Security Administration (SSA) admin- isters two national disability programs: Social Security Disability Insurance (SSDI), established under Title lI of the Social Security Act, and Supplemental Security Income (SSI), estab- lished under Title XVI of that Act. SSDI is a social insurance program designed to pronde benefits to those who have been employed but are no longer able to work because of a medically determined impairment. The SST program, on the other hand, is intended to protect those who do not have a recent work history. OVERVIEW OF THE SOCIAL SECURITY DISABILITY SYSTEM The Programs Applicants to SSDI must demonstrate a "current connection with the work force" in order to be eligible for benefits under this program. That is, an applicant must have worked in Social Security-covered employment for a minimum number of quarters within a prescribed period of time in the recent past; specific requirements are based on the worker's age. For those who have contributed to the 01d Age, Survi- vors, and Disability Trust Fund while working, benefits under this program are considered an entitlement and are awarded without a financial means test. As of December 1985, SSDI benefits paid to the 2.7 million disabled workers (receiving an average monthly allowance of $470) and more than 1.2 million of their dependents totaled $1.5 37

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38 THE PROBLEM OF PIN POR THE SSA billion per month (U.S. Department of Health and Human Services, 1987). There are no work requirements to receive benefits under SSI, but applicants must demonstrate financial need. Income and resources from all sources are considered in determining need. In addition to those judged disabled, needy blind and aged persons are eligible for SSI benefits; however, the disabled account for more than 60 percent of the total number of SSI beneficiaries (U.S. Congress, 19821. In November 1985, benefits totaling $0.7 billion per month were paid from general tax revenues to 2.6 million disabled people under SS] (U.S. Depart- ment of Health and Human Services, 19871. A significant proportion of claimants can apply for benefits under SSD! and SSI simultaneously. These are people who have worked long enough and recently enough to meet the criteria for SSDI but whose earnings were at a very low level. Because the monthly benefit under SSDI is based on past earnings, these same people may be able to qualify for an additional amount from SSI on the basis of need. Nearly 300,000 people currently receive benefits under both programs (Social Security Administration, 1985b). The SSDI program has grown considerably in the past 25 years. Between 1960 and 1985, the number of beneficiaries increased by 480 percent and the total annual benefits paid under the program increased by 778 percent. This growth far outstripped the increase in the U.S. adult population, which grew by only 51 percent during that period, and that of the working population insured for disability under SSA, which increased by 135 percent. The SST program has shown a more modest growth pattern during its shorter history. From 1975 to 1984, the number of disabled and band beneficiaries grew by 25 percent, whereas the total annual benefits for the blind and disabled under SST increased by 24 percent; the adult population increased by 15 percent over that same period. (See Figure 3-1 and Tables 3-1 and 3-2.) Program Definitions In administering both of its disability compensation programs, the SSA is bound by statutory definitions of disability. As set forth in the Social Security Act, disability is [An] 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. (42 USC, 423 (d)~1~)

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DO DETERMINATION ED THE ROLE OF PEN 39 LL 150 - In O 1 20 0 90 in: He cat 60 LL <) 30 o = . .... ..................... _ = ! =1 SSA-lnsured population SSDI benenclarles Total benefit payments under SSOI, constant dollars . .. ~ i. i... .. :. .. . it,. ~ .::.: ::. ..... . ::: ::-.. ~ ... .. .... :.: , . .. ..................... _ ~ 1965 1970 1975 YEAR 1980 1985 FIGURE 3-1 Trends over time for Social Security Disability Insurance (SSDI). (SSA: Social Security Administration.) Further "physical or mental impairment" is defined in the statute as: an impairment which results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. (42 USC, 423 (d)~31) In order for a physical or mental impairment to be considered a disability within the meaning of the statute, it must prevent the claimant from engaging not only in his or her previous work but in any kind of work that exists in the national economy, taking into account the claimant's age, education, and work experience. A complex set of regulations has evolved to implement the statute. The SSA has established a set of medical evaluation criteria referred to as the "Listing of Impairments" (20 CFR, 404, Subpart P. Appendix 1; see also U.S. Department of Health, Education, and Welfare, 19791. This listing defines a level of severity of impairment that, in the absence of substantial gainful activity, allows a presumption of dis- ability by those charged with evaluating disability claims. The listing contains more than 100 examples of medical conditions. They are arranged according to 13 body systems and describe impairments in terms of symptoms, signs, and laboratory findings. Symptoms are defined in the regulations as the clamant's own

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40 - ~ ~ oD lo 433 ~ - ~ o ca (Q cd ~ - - - - · c) o go o Ed · - D Ct GO ._ - Cal _ o o _ CO To CD a) - CO a: _ Cal ~ C— cat 1 Cal rat d. Cal _. ~ ° Cal 1 - o ~ Go Cal 6g Go CC Cal ~ 69 Go en 8 o ~ - U: U: rat AD o U: . I> it. U: Cat ~ ~ ~ _ oo ao CO C~ U: ~ co ~4 ~ ~ tD .= s ~ C ~, m m C)^~ C ~ C~ ~ ~ => cn 0 0 ~ =° 0- 0 r~ 0 C)~ ~ 0 . Qe~ Cm ~ ~ _ ~ ~ O _ ~ ~ . ~ CD~ .0 o~ ~8, ,s e ~ _ ~5 V ~ 8- elml ~, ~ ~ , ~ ~ ~ ,= , _ C ~ bO =° bC0 .~ - 0 c~ ~ E I n ~, ~ ~ ~, `$ ~ z n · r~ ~ ~

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DISH DETERMINATION ED THE ROLE OF PEN 41 TABLE 3-2 Trends over Time for Supplemental Security Income (SSI) SSI Year Summary, (Blind and Disabled) 1975 1980 1984 1975-1984 No. of beneficiaries 2,007 2,334 2,500 (disabled workers) Percentage change 16 7 25 Benefit payments $3,273 $5,204 $7,392 (millions) Percentage change 59 42 Benefit payments $5,519 $6,072 $6,851 (millions)b Percentage change 10 13 24 NOTE: Compiled using data from: Statistical Abstract of the United States, 1986 (106th ed.), Bureau of the Census, Washington, DC, 1985; Social Security Programs in the United States, Social Security Bulletin, Vol. 49, No. 1, January 1986; and the Social Security Bulletin, Annual Statistical Supplement, 1984-1985. a Current dollars. b Constant dollars, 1982. Constant dollars were calculated using the Gross National Product Implicit Price Deflator provided by the Bureau of Economic Analysis, U.S. Department of Commerce. perception of his or her physical or mental impairments. Signs are anatomical, physiological, or psychological abnormalities that can be observed with medically acceptable clinical techniques. Laboratory findings are manifestations of anatomical, physiological, or psycholog- ical phenomena demonstrable by replacing or extending the per- ceptiveness of the observer's senses; they include chemical, electro- physiological, roentgenological, and psychological tests (20 CFR 404.1528). The 10 musculoskeletal impairments in the listing include active rheumatoid arthritis, arthritis of a major weight-bearing joint, arthri- tis of one major joint in each of the upper extremities, disorders of the spine, osteomyelitis, soft tissue injuries, and various amputations, anatomical deformities, and fractures. The full text for two impair- ments in the SSA listing follows. Disorders of the spine: A. Arthritis manifested by ankylosis or fixation of the cervical or dorsolumbar spine at 30° or more of flexion measured from the neutral position, with X-ray evidence of: 1. Calcification of the anterior and lateral ligaments; OR 2. Bilateral ankylosis of the sacroiliac joints with abnormal apophyseal articulations; OR

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42 THE PROBLEM OF PIN FOR THE SSA B. Osteoporosis, generalized (established by X-ray) manifested by pain and limitation of back motion and paravertebral muscle spasm, with X-ray evidence of either: 1. Compression fracture of a vertebral body with loss of at least 50 percent of the estimated height of the vertebral body prior to the compression fracture, with no intervening direct traumatic episode; OR 2. Multiple fractures of vertebrae with no intervening direct traumatic episode; OR C. Other vertebrogenic disorders (e.g., herniated nucleus puiposus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2: 1. Pain, muscle spasm, and significant limitation of motion in the spine; AND 2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. Active rheumatoid arthritis and other inflammatory arthritis. With both A and B. A. Persistent joint pain, swelling, and tenderness involving mul- tiple joints with signs of joint inflammation (heat, swelling, tenderness ~ despite therapy for at least 3 months, and activity expected to last over 12 months; AND B. Corroboration of diagnosis at some point in time by either: 1. Positive serologic test for rheumatoid factor; OR 2. Antinuclear antibodies; OR 3. Elevated sedimentation rate. As these examples illustrate, particular signs, symptoms, and labo- ratory findings (often at precise levels) are specified for each condition in the listing of impairments. Pain is often mentioned. In addition, the listings often specify that these indicators of impairment must be present despite therapy of a particular type or duration, and that the condition must be expected to last 12 months. The Application and Evaluation Process An individual seeking disability compensation first files a claim with one of the more than 1,300 district and branch offices of the SSA. About 1.5 million initial claims are filed each year. Employees of the district office interview the claimant, help complete the disability application, obtain information about the cIaimant's work background,

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DO DETERMINATION ID THE ROLE OF PAN 43 and obtain the names of the claimant's physicians and other sources of treatment. The district office staff also must advise the claimant of his or her rights and responsibilities in the application process. The claim is then referred to a state agency known as a disability determination service (DDS). The DDS is responsible by law and regula- tion for making decisions about whether or not the claimant is disabled, the date the disability began, and, if appropriate, the date the disability stops or is expected to stop. Each claim is evaluated by a two-member state team. One of the team members is a nonphysician referred to as a disability examiner, who is knowledgeable about the legal and adminis- trative requirements for entitlement under the disability programs; the other is a physician who makes the medical determination of impair- ment. The state disability determination services have their own policies regarding the qualifications of the personnel they employ. For physicians, generally the only requirement is that they are licensed to practice in that state, not that they be board certified. They may be employed part time or full time. Physicians tend to be internists and general or family practitioners so that they can process a broad range of cases, and also because the states typically do not pay high enough salaries to be able to hire specialists. By federal law, specialists are only required in adverse mental impairment cases, but usually psychiatrists are brought in on all mental cases. With this exception, the physicians who conduct the paper reviews at the state level are likely not to have the specialized expertise that may be needed to judge particular cases. The evaluation team is presented with a file on each claimant containing the forms filled out by the individual with the help of the SSA district office and the information forwarded to the DDS by physicians and others who have treated the individual. These forms differ from state to state, but generally include what is believed to be the pertinent information about the medical conditions that prevent the individual from working, as well as other information about past work history and current level of income. The completeness of such files may vary from state to state and from applicant to applicant. The evaluators can ask for more information from the claimant or from the treating or examining physician in order to complete the assessment. They may also ask for an examination of the claimant by a consulting physician paid by the SSA. The evaluation team is required to evaluate the claim in a particular fashion set forth in regulation and provided to employees in training sessions and manuals. This procedure is known as the sequential evaluation process and consists of up to five steps. (See Figure 3-2 for a schematic depiction of the sequential evaluation process.)

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44 THE PROBLEM OF PIN FOR THE SSA 1. Engaging in SGA? Yes No Claimant Denied Beneflts r 2. Severe Impairment? No ~ Yes Claimant Denied Beneflts 3.a. Meets Ustings? No ~ Yes b. Equals Listing? No I Yes 4. RFC for Past Work? 1 No Claimant Denied Beneflts Claimant Awarded Beneflts ~ on Medical Basis Alone 5. RFC for Any Work? Age, educ., training, experience, taken Into account Yes I No I Claimant Denied Beneflts Claimant Awarded Beneflts FIGURE 3-2 Sequential evaluation process. (RFC: residual functional capacity. SGA: substantial gained activity.)

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DISH DETERMINATION ED THE ROLE OF PEN 45 The first step in the sequential evaluation process is a nonmedical determination as to whether or not the claimant is "engaging in substantial gainful activity" (SGA). SGA is defined by regulation as "work that involves doing significant and productive physical or mental duties and is done for pay or profit." It is evaluated using earnings guidelines also set forth by regulation; since 1980, earnings of more than $300 per month have usually been found to be evidence. of SGA. Earned income alone is considered in the determination of SGA, but certain impairment-related work expenses may be deducted from earnings. An individual found to be working for substantial gain is denied benefits, and the evaluation process stops for that claimant. For those claimants not currently working for substantial gain, the process continues to a second step. Here the determination is made as to whether or not the claimant has a severe impairment. An individ- ual's impairment (or combination of impairments) is judged to be severe when it has a significant negative effect on the individual's ability to perform basic work activities. Basic work activities include the capacity for sitting, standing, walking, lifting, pushing, pulling, handling, seeing, hearing, communicating, and understanding and following simple instructions. When symptoms are alleged, it must be shown that the impairments could reasonably produce the symptom. When an impairment and related symptoms are judged not to be severe, the claim is denied. When the cIaimant's impairment is found to be severe, the evaluator proceeds to the third step. Now it must be dete~-~nined whether or not the condition falls under the regulatory Listing of Impairments men- tioned earlier. A claimant is said to "meet" the Listing of Impairments when the medical evidence in his or her file substantiates all of the signs, symptoms, and findings called for in the listing. A claimant who is judged to meet the listing is found disabled on the basis of medical evidence alone and is awarded benefits. An individual may also be found disabled at this third step if the impairment or impairments are found to be equivalent to the level of severity and duration of a listed impairment. A program physician or psychologist decides whether a cIaimant's impairment is of equivalent severity by comparing the set of signs, symptoms, and findings that describe the individual's impairment with those specified for the most closely corresponding listed impairment. A claimant whose impair- ment "equals" the listing is judged disabled on the basis of medical evidence and receives benefits. When the claimant's impairment is found not to "meet or equal" the Listing of Impairments, the evaluator proceeds to a fourth step and then, if necessary, to a fifth step. At these steps, vocational factors are

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46 THE PROBLEM OF PIN FOR THE SSA considered. First, an assessment of residual functional capacity is made by the program physician to determine the cIaimant's ability to perform physical or mental functions required for work despite the limitations caused by the impairment and related symptoms. An evaluation is made of the individual's exertional (basic strength) capacities (e.g., walking, sitting, standing, lifting, carrying, pushing, or pulling), including an assessment of his or her maximum ability for sustained activity on a regular basis. The assessment also includes an evaluation of such other significant physical functions as reaching, handling, seeing, hearing, and speaking. Again, this assessment is done by reviewing information in the file only; the evaluator does not see the claimant face to face. In the case of claimants applying on the basis of mental conditions and other nonexertional impairments, the assessment of residual functional capacity must include an evaluation of the claimants' capacity for the mental demands of work. Such claimants are assessed on the basis of their level of functioning, including such things as relationships with family members and others, and the ability to carry out necessary daily tasks, such as shopping for and preparing meals and caring for personal hygiene. Based on the assessment of residual functional capacity, the disabil- ity evaluator determines whether the claimant can perform work as before (Step 41. If the individual can perform that past work, he or she is found not disabled and benefits are denied. If the claimant cannot do the past work, a determination is made as to whether he or she can do any work that exists in the national economy (Step 51. For exertional impairments, such determinations are made by consulting a matrix known as the "grids." Exertional requirements of jobs are classified from "sedentary" to "very heavy," using the definitions in the Dictio- nary of Occupational Titles published by the U.S. Department of Labor; skill levels are classified as skilled, semiskilled, and unskilled. For nonexertional impairments (e.g., mental impairments), the grids are used as a framework for deciding disability. Considerations of age, education and training, and past work expe- rience must be taken into account at Step 5. SSA regulations classify age 55 and over as ''advanced age," the time at which age adversely affects the individuaT's vocational adaptability such that he or she cannot be expected to take on work different from that performed in the past. The Appeals Process A claimant who is denied benefits at the initial determination may request a reconsideration. About 60 percent of the 1.5 million ciaim-

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DO - DETERMINATION ED THE ROLE OF PEN 47 ants who receive initial determinations each year are denied; 50 percent of these, or about 450,000, ask for a reconsideration (see Figure 3-31.* The reconsideration is carried out by a different examiner/medical consultant team at the state disability determina- tion services. This team goes through the same five-step sequential evaluation process used by the initial evaluation team. The appli- cant may provide additional evidence or claim a worsening of the condition. If benefits continue to be denied on reconsideration (as they are in 80 percent of the cases reconsidered), the claimant may request a hearing before an administrative law judge (ALd). About 70 percent of denied claimants, or 252,000 each year, request such a hearing. The SSA employs about 700 ALds in its Office of Hearings and Appeals. The ALd can request and receive evidence from any source and has the authority to issue subpoenas. The applicant may appear in person at a hearing, with or without a representative, and may present witnesses and additional evidence or may request that the ALJ make a deter- mination by reviewing the existing file, including any new evidence submitted. The ALd also follows the sequential evaluation process in making a decision. In about 50 percent of the cases, the ALd overturns the decision of the previous adjudicators. A claimant who is dissatisfied with the decision of an AL] can request a review by the Appeals Council of the Office of Hearings and Appeals. The Appeals Council can decline to review a case; if it chooses to consider a case, it may affirm, modif y, or reverse the ALd's decision. In addition, the Appeals Council can initiate a review of any Alms decision even if the applicant does not make such a request. Usually the Appeals Council sees only the record from the ALd hearing and the SSA file. It may, however, request additional evidence or information from the claimant and, rarely, may invite a claimant to appear before the council. The Appeals Council reviews the procedural aspects of the earlier steps, but it does not review the merits of the case itself *Numbers and percentages in this section and the accompanying figure are estimates provided by the SSA. The SSA has figures on the number of cases adjudicated at each level each year that are quite reliable. Figures on the number of cases that arrive at each level are less accurate. The SSA does not have a system for tracking individual claimants over time through the various levels of appeal. Moreover, until recently the SSA has not tried to categorize pain claimants or to count them because pain essentially fell outside its disease-oriented and anatomical systems approach to disability. Despite the well-known problems involved in adjudicating claims that turned principally on pain, pain was not a priority for the disability program until it attracted political attention.

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DISH - DETERMINATION~D TEE ROLE OFP~N 55 tailed descriptions from the claimant, from physicians, and from other persons who know the claimant, about such matters as: · the nature, location, onset, duration, frequency, radiation, and intensity of any pain; · precipitating and aggravating factors (e.g., movement, activity, environmental conditions); · the type, dosage, effectiveness, and adverse side effects of any current or previous pain medication; · past or current treatment, other than medication, for relief of pain; · functional restrictions; and · the claimant's daily activities. SSA guidelines emphasize that adjudicators must consider all evi- dence, medical and nonmedical, that relates to subjective complaints such as pain. The guidelines further indicate that "in instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or reject that individuaT's subjective complaints solely on the basis of such personal observations" (Social Security Administration, 1985a). Pain and the Courts Over the past 20 years, a significant number of federal cases were decided in which the alleged disability was wholly or substantially related to pain (see Zaiser, 1984~. Each of the federal circuits has been faced with such cases and each has developed its own line of precedent- setting decisions. When a circuit court opinion is particularly broad based or well founded in legal principle, the tendency among the circuits has been to adopt that case law as precedent, although there are exceptions. One of the earliest cases in which the Secreta}y's decision to deny benefits was overturned, and which has been overwhelmingly adopted by the circuits, was Page v. Celebrezze, 311 F. 2d 757 (5th Cir. 19631. In that case the court enunciated the following standard: If pain is real to the patient and as such results in that person being physically unable to engage in any gainful occupations suited to his training and experience, and this results from 'any medically determinable physical or mental impairment,' the disability entitles the person to the statutory benefits even though the cause of such pain cannot be demonstrated by "objective clinical and laboratory findings." Not Tong after this case, the determination was made in Ber v. Celebrezze, 332 F. 2d 293 (2d Cir. 1964) that the subjective complaints of the severity of pain must be taken into full consideration by the

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56 THE PROBLEM OF PIN FOR THE SSA a~ninistrative adjudicator and that it is improper to determine that the cIaimant's particular condition cannot produce the stated degree of disabling pain. "What one human being may be able to tolerate as an uncomfortable but bearable burden may constitute for another human being a degree of pain so unbearable as to subject him to unrelenting misery of the worst sort," the judge wrote. During the 1970s the evolution of policy and standards for assessing pain continued. Many of the circuit courts continued to reinforce the policy stated in Page v. Celebrezze, that objective clinical and labora- tory findings were not necessary for a finding of disability. It was enunciated consistently that the only threshold requirement was the presence of a medically diagnosed impairment that could plausibly cause the claimant's pain (Miranda v. Secretary, 514 F. 2d 996 (1st Cir. 19751; Baerga v. Richardson, 500 F. 2d 309 (3d Cir. 197411. Until quite recently the two landmark cases on pain as a legitimate disability most often cited as authority by various courts were Marcus v. Califarzo, 615 F. 2d 23 (2d Cir. 1979), and Aubeufv. Schweiker, 649 F. 2d 107 (2d Cir. 1981~. The net effect of these two cases was that "subjective pain may serve as the basis for establishing disability even if such pain is unaccompanied by positive clinical findings or other medical evidence" (Marcus v. Califano); that a claimant's subjective complaints of pain cannot be rejected because of the absence of substantiating objective evidence unless there is contradictory evi- dence contained within the record; and that the opinion of the treating physician as to a claimant's disability is binding on the adjudicator. These two cases, following in a long line of related cases, created significant precedent for disability claimants who experienced sub- stantial disabling pain. Over the next several years there were numerous cases in which pain was determined to be the primary cause of disability, resulting in the awarding of benefits to claimants who had been denied them by the administrative process. This outcome, however, came about only for claimants who appealed unfavorable administrative decisions. Administrative evaluators are not bound by the evolving judicial standards on pain. It is likely that, during that time period, claimants who might have been awarded benefits based on the judicial standards were denied awards in the administrative evaluation process and did not pursue appeals. Of particular influence in recent years has been the case of Polaski v. Heckler, 751 F. 2d 943 (8th Cir. 19841; we discuss this case in some detail because of its importance. Polaski was a beneficiary whose benefits had been terminated during the 198~1981 reviews and who appeared this decision; the case was later expanded into a class action suit. Oral

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DO DETERMINATION ED THE ROLE OF PEN 57 arguments were heard in the Eighth Circuit Appeals Court in June 1984, but the judge deferred issuing a decision until the parties had a chance to come to an agreement. On July 11, the parties to the case signed such an agreement, known as a consent decree; the court accepted the agreement a week later, followed shortly by the Secretary's dissemination of this approved standard to SSA disability adjudicators in the Eighth Circuit. The consent decree to which the Secretary and the plaintiffs agreed set forth the following standard on the evaluation of pain as a disability: · Although the claimant has the burden of proving that the disabil- ity results from a medically determinable physical or mental impair- ment, there need not be direct medical evidence of the cause and effect between the impairment and the subjective effects of pain. · The absence of objective medical evidence is only one factor to be considered in making the disability determination. · The adjudicator must give full consideration to all evidence and testimony regarding the subjective complaints. ~ The adjudicator cannot accept or reject subjective complaints based solely on his personal observations. This agreement was based primarily on the SSA's 1982 ruling, SSR-82-58, which the Secretary acknowledged in the agreement might have been misinterpreted by some SSA adjudicators. P.~. 98~60, the Social Security Disability Benefits Reform Act of 1984, was passed in October and took effect in November. It included a section on the evaluation of pain and other subjective complaints that essentially incorporated the standard agreed to by the Secretary in July. The judge's decision on Pokxski v. Heckler was issued on December 31, 1984, and included the determination that the agreement and the statute are not substantially different in their handling of pain. Since the agreement and the codification ofthe standard in P.~. 98-460, there have been cases appeared to the courts by claimants who were denied after applying for benefits primarily on the basis of pain. However, a review of the cases indicates that the SSA's decisions have been overturned infrequently. The Polaski standard and the law appear to have better defined the criteria for evaluating pain and thus to have decreased the disagreement between the SSA and the federal courts. COMPARISON WITH OTHER DISABILITY COMPENSATION PROGRAMS Programs in the United States and in other countries have devel- oped a variety of ways to deal with compensation for disability that

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58 THE PROBLEM OP PIN FOR THE SSA may or may not pay specific attention to pain complaints. This section briefly describes procedures of the Veterans A~ninistration (VA), the Workers' Compensation system, private disability insurance carriers, and programs in Western Europe in order to provide some points of comparison with the SSA disability system. Table 3-3 presents a synopsis of the four major disability compensation programs in this country. Veterans Administration The VA has two programs for the compensation of disability. One is the service-connected compensation program, an entitlement program for which a veteran is eligible simply by a determination of disability; there is no means test and no requirement of an inability to work. A veteran can be compensated for any disabling physical or mental impairment sustained in the course of his or her military service. The amount of compensation depends on the percentage of disability determined by the VA's administrative process. Separate ratings are assigned to each impairment, and a total rating is reached by means of a formula that takes into account the interactive as well as the additive effects of multiple impairments. Non-service-connected pension benefits may be payable for an im- pairment sustained after military service. Benefits under this program are available only when the veteran is determined to be totally and permanently disabled and unable to work at a substantial gainful level as a result. An individual must be adjudged at least 60 percent disabled, using the VA rating system, in order to be considered "totally" disabled and eligible for this program. Legislation pertaining to the VA disability compensation programs defines total and pe~anent disability in the following way: · . . . (1) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person; or ~ . . . (2) any disease or disorder determined by the Administrator to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. 35 USC 502(a) In 1985 there were almost 4 million veterans receiving benefits for disabilities—2.3 million were service connected and 1.6 million wer non-service connected. About 60 percent of the VA's fiscal year (FY) 1985 budget was allocated to disability benefits, with $9 billion paid

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DISK - DETERMINATION ED THE ROLE OF PEN 59 for service-connected disabilities and $6 billion for non-service-con- nected disabilities (Swansburg, 19851. The VA provides a broad array of benefits to its disability recipients. In addition to monthly cash benefits, disabled veterans are eligible to receive medical treatment at VA facilities, prosthetic dences, an allowance for modifications to homes and automobiles if required by the disability, and vocational rehabilitation sernces. Vocational rehabilitation is not man- datory in order to receive or continue receiving benefits. It consists of counseling, job training or retraining, and job placement assistance. The Role of Pain The VA does not consider pain in and of itself disabling. Federal regulations delineate the role of pain in assessing disability as follows: Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speech, coordination and endurance.... The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures . . . or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant. (38 CFR 4.40) In evaluating disability claimants, the examining VA physician is instructed to furnish "in addition to the etiological, anatomical, patho- Togical, laboratory and prognostic data required for ordinary medical classification, full descriptions of the effects of disability upon the person's ordinary activity" (38 CFR 4.10~. When evaluating a disorder that includes significant pain, the physician is further instructed to request the veteran to describe the pain, any limitation of function that results from the pain, the duration of the pain, and other findings associated with the pain (e.g., fatigue, weakness, swelling, or tender- ness). Findings on the presence of pain, as well as the limitations that the pain imposes, are factors in the dete'-~'ination of the percentage of disability. As the regulations indicate, disability can be found to be caused by pain as Tong as there is adequate underlying pathology, but pain in excess of the underlying disorder is not considered indepen- dently. Workers' Compensation Workers' Compensation programs are state-run programs and there is much variability among them. The common element is the intent to

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62 THE PROBLEM OF PIN FOR THE SSA compensate disability arising in the course of one's employment. Work- ers' Compensation programs provide three kinds of benefits: death bene- fits to an employee's survivors; wage-Ioss payments due to disability; and payment of hospital, medical, Al rehabilitation expenses occasioned by a work-related injury. Formulas for calculating death benefits and weekly compensation rates differ significantly from one state to the next. Although the SSA requires that a person be unable to engage in any kind of substantial gainful employment, most Workers' Compensation systems require only that the employee be unable either to perform his or her former employment or to obtain other employment suitable to his or her qualifications and training. The ability to perform work at a Tower activity level is usually not a consideration in the award of Workers' Compensation benefits. Workers' Compensation systems provide for four categories of compen- sable medical disability: temporary total, temporary partial, permanent partial, and permanent total. The two temporary categories have been the least controversial because they are characterized by the expectation of a return to work after a period of recuperation; the controversy that does arise surrounds determining the appropriate length of the recuper- ative period. The question has usually been resolved by defining the end of the healing period as the time when maximum medical improvement has been achieved, as determined by the treating physician. In theory, the underlying notion supporting Workers' Compensation systems is that the employee eventually will return to work; state compensation boards often attempt to impress upon the employee the value of rehabilitation. Willingness to participate in a rehabilitation program is usually not mandatory in order to qualify for benefits; however, a few states have instituted obligatory completion of a rehabilitation program after benefits have begun. There has been a trend toward the revision of state laws to provide for the expectation of a return to work rather than for the Tong-term receipt of benefits. The Role of Pain In state compensation systems, the emphasis is usually not on the continuing presence of pain but on the stabilization of the underlying disorder. Larson (1980) notes, "the persistence of pain may not of itself prevent a finding that the heating period is over, even if the intensity of the pain fluctuates from time to time, provided again that the underlying condition is stable." When a claimant reports subjec- tive complaints of unknown etiology, there is little chance of receiving Workers' Compensation benefits. However, when there is substantial

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DISABILI~ DETERMINATION ED THE ROLE OF PEN 63 pain and at least some underlying pathology capable of producing the pain, the disabling eject of the pain is taken into account (Swansburg, 19851. As with Social Security disability, such cases are among those that are appealed to the courts and that are sometimes overturned on appeal. Private Disability Insurance Income replacement is the benefit generally available under private disability insurance programs (see SouTe, 19841. A disability insurance policy is an agreement between parties that a particular amount will be paid periodically if the claimant becomes disabled. Health care and hospitalization are not generally included in these contracts. Rehabil- itation services may or may not be provided depending on the insur- ance company and the type of policy. Benefits are usually provided for stated periods of time ranging from a few months to the attainment of a particular age. Insurance carriers may offer disability coverage to individuals and to groups. Most policies include a clause that a beneficiary may be required to be reexamined periodically by a physician of the insurance company's choice, in order to be sure that the individual is still eligible for compensation. Because each company issues its own policies, disability is defined in a variety of ways. The elements that vary among criteria include: the degree of impairment covered (e.g., partial, total, or residual), the degree of vocational impairment required (e.g., inability to perform one's usual occupation), and the expected duration of disability (e.g., permanent, more than a particular number of months, etc.~. Carriers of policies that allow for rehabilitation benefits will pay for services not otherwise covered by health care insurance, provided that an acceptable plan of rehabilitation has been agreed to by the insured, the treating physician, the rehabilitation facility, and the carrier. Although an intent to participate in rehabilitation is not required to initiate or continue benefits, such an intent is considered evidence of the claimant's motivation. The insurance company itself may become involved in rehabilitation efforts by referring claimants to a third- party rehabilitation counselor or center or, in some cases, by providing its own rehabilitation centers. The Role of Pain Insurance companies require medical documentation of treatment for any condition held to be causing disability; reports from the

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64 THE PROBLEM OF PMN FOR THE SSA treating physician, laboratory results, and hospital records are gener- ally sufficient. In some cases, however, including those in which pain is significant, companies may require disability examiners to see the claimant face to face (Deal, 19851. The examiner may seek information about the claimant's personal stability, home life, marriage, work history, and relationships. The examiner may ask the cIaimant's treating physician about the pain's relation to any underlying injury or illness. The examiner may also arrange for an independent physical or psychiatric examination of the claimant. The level of correspondence required between pain and underlying pathology tends to be somewhat lower and less restrictive in most private disability insurance than it is in the SSA system. Still, a claimant whose complaints are subjective only, with little or no detected pathology, has small chance of compensation (Swansburg, 19851. Disability Compensation Programs in Western Europe Similar variety exists between the SSA programs and disability compensation programs in other countries (see Wegner, 19861. Euro- pean policies toward the disabled focus principally on the assessment of earnings capacity rather than on a strict medical definition of disability. Individuals need not be totally incapable of earning a living in order to qualify for benefits. European systems also pronde tempo- rary disability benefits, preferring to maintain individuals on tempo- rary disability rather than labeling them as "permanently disabled," in order to encourage rehabilitation efforts. Another major difference is that in European countries the health, unemployment, disability, and retirement insurance systems are usually coordinated and also may be linked to medical and vocational rehabilitation, including job retrain- ing. The decision about eligibility for disability benefits is usually made only after efforts have been made to rehabilitate the individual and return him or her to gainful employment in his or her previous job or a new one. REFERENCES Deal, Russell P., Vice President, Paul Revere Life Insurance Company. Testimony before the Commission on the Evaluation of Pain, June 13, 1985. Goldhammer, A., and Bloom, S. Recent changes in the assessment of pain in disability claims before the Social Security Administration. Administrative Law Review 35:451~83, Fall 1983. Larson, A. The Law of Workmen's Compensation. New York: Matthew Bender & (lo., 1980.

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DISABILITY DETERMINATION AND THE ROLE OF PAIN 65 Pear, Robert. New court sought for benefit cases. New York Times, 1, 29, March 9, 1986. Social Security Administration. Legislative report: summary of provisions of the Social Security Disability Benefits Reform Act of 1984. SSA Office of Legislative and Regulatory Policy, 1984a. Social Security Administration. National Study of Chronic Pain Syndrome. Office of Disability, 1984b. Social Security Administration. SSA Disability Program Circular 05.85.0D: Evaluation of Pain. SSA Pub. No. 64.044, 1985a. Social Security Administration. Social Security Bulletin, Annual Statistical Supplement, 1984 85. Washington, DC, 1985b. Social Security Administration. Social Security Programs in the United States. Social Security Bulletin, Vol. 49, No. 1. January 1986. Soule, C.E. Disability Income Insurance: The Unique Risk. Elomewood, IL: Dow Jones- Irwin, 1984. Swansburg, D.S. The relationship between pain and disability benefits: a literature survey. Background paper prepared for the Commission on the Evaluation of Pain, October 1985. United States Bureau of the Census Statistical Abstract of the United States, 1986 (106th ed.). Washington, DC. 1 98o United States Congress. Social Security Disability: Past, Present, and Future. An information paper prepared by the Special Committee on Aging, U.S. Senate, 97th Cong., 2d sess. Washington. OC: U.S. Government Printing Office, March 1982. United States Department of Health. Education, and Welfare. Disability Evaluation Under Social Security: A Handbook for Physicians. Washington, DC: U.S. Govern- ment Printing Once, 1979. United States Department of Health end Human Services. Report of the Commission on the Evaluation of Pain. Washington, DC: U.S. Government Printing Once, 1987. Wegner, E.L. Cross-national comparisons in social policies regarding disability pay- ments and vocational rehabilitation. Background paper prepared for the IOM Com- mittee for a Study of Pain, Disability, and Chronic Illness Behavior, 1986. Weinstein, J.B. Equality and the law: Social Security disability cases in the federal courts. Syracuse Law Review 35:897-938, 1984. Zaiser, G. Proving disabling pain in Social Security disability proceedings: the Social Security Administration and the Third Circuit Court of Appeals. Duquesne Law Review 22:491-520, Winter 1984.