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 Old Age, Survivors, 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 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, 1982). In November 1985, benefits totaling $0.7 billion per month were paid from general tax revenues to 2.6 million disabled people under SSI (U.S. Department of Health and Human Services, 1987).

A significant proportion of claimants can apply for benefits under SSDI 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 SSI program has shown a more modest growth pattern during its shorter history. From 1975 to 1984, the number of disabled and blind beneficiaries grew by 25 percent, whereas the total annual benefits for the blind and disabled under SSI 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.)

Figure 3-1

Trends over time for Social Security Disability Insurance (SSDI). (SSA: Social Security Administration.)

TABLE 3-1

Trends over Time for Social Security Disability Insurance.

TABLE 3-2

Trends over Time for Supplemental Security Income (SSI).

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))

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)(3))

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, 1979). This listing defines a level of severity of impairment that, in the absence of substantial gainful activity, allows a presumption of disability 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 claimant's own 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 psychological phenomena demonstrable by replacing or extending the perceptiveness 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, arthritis 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 impairments in the SSA listing follows.

Disorders of the spine:

A.

Arthritis manifested by ankylosis or fixation of the cervical or dorsolumbar spine at 30º 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

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 pulposus, 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 multiple 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 laboratory 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 claimant's work background, 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 regulation 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 administrative requirements for entitlement under the disability programs; the other is a physician who makes the medical determination of impairment. 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.)

Figure 3-2

Sequential evaluation process. (RFC: residual functional capacity. SGA: substantial gainful activity.)

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 individual'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 impairment(s) could reasonably produce the symptom. When an impairment and related symptoms are judged not to be severe, the claim is denied.

When the claimant's impairment is found to be severe, the evaluator proceeds to the third step. Now it must be determined whether or not the condition falls under the regulatory Listing of Impairments mentioned 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 claimant'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 impairment "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 considered. First, an assessment of residual functional capacity is made by the program physician to determine the claimant'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 disability evaluator determines whether the claimant can perform work as before (Step 4). 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 5). 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 Dictionary 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 experience 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 individual'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 claimants who receive initial determinations each year are denied; 50 percent of these, or about 450,000, ask for a reconsideration (see Figure 3-3).^* The reconsideration is carried out by a different examiner/medical consultant team at the state disability determination services. This team goes through the same five-step sequential evaluation process used by the initial evaluation team. The applicant may provide additional evidence or claim a worsening of the condition.

Figure 3-3

Disposition of claimants for SSDI benefits.

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 (ALJ). About 70 percent of denied claimants, or 252,000 each year, request such a hearing. The SSA employs about 700 ALJs in its Office of Hearings and Appeals. The ALJ 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 determination by reviewing the existing file, including any new evidence submitted. The ALJ also follows the sequential evaluation process in making a decision. In about 50 percent of the cases, the ALJ overturns the decision of the previous adjudicators.

A claimant who is dissatisfied with the decision of an ALJ 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, modify, or reverse the ALJ's decision. In addition, the Appeals Council can initiate a review of any ALJ's decision even if the applicant does not make such a request. Usually the Appeals Council sees only the record from the ALJ 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.

Applicants who wish to pursue claims afar benefits have been denied by the council are permitted by statute to appeal their cases through the federal court system (see Weinstein, 1984). An estimated 95 percent of the more than 52,000 Social Security cases pending in the 94 federal district courts at the end of 1985 were disability claims (Pear, 1986). Applicants may continue to appeal their cases up to the U.S. Supreme Court. The standard of review throughout the federal court system is whether the lower levels of adjudication followed appropriate procedures in making their decisions, and most important, whether the decision was supported by substantial evidence. Chapter 4 discusses some of the problems that arise when the appeals process is carried out in practice.

Program Benefits

Although a person may apply for SSA compensation at any time after becoming disabled, cash benefits under SSDI cannot begin until 5 months from the date of onset of the disability, as established by the disability determination services. The monthly payment awarded to SSDI beneficiaries is dependent on the amount of money they earned during SSA-covered employment. A complex formula is applied to arrive at the specific amount in each case. The benefit amount does not relate to the nature of the impairment or to the underlying medical condition. The recipients of SSI all receive the same basic federal payment; however, some states supplement this federal payment. Medicare (for SSDI) and Medicaid (for SSI) coverage is also available to disability beneficiaries; eligibility requirements vary between the two programs. As long as the disabling condition continues and other program requirements continue to be met, SSDI benefits can continue until the recipient is eligible for benefits under the old age provisions of the Social Security Act. Disability beneficiaries are subject to periodic review by the SSA to assure their continued eligibility. The kind of impairment generally determines the interval for the periodic reviews. The statutory requirement is for a review at least every three years. However, in cases of permanent impairment the Secretary has the discretion to conduct reviews less frequently; in cases where the beneficiary is expected to recover fairly quickly, the periodic reviews may be conducted more frequently.

Incentives for Rehabilitation and Return to Work

Despite the requirement that a person be totally disabled and unable to work for an extended period of time, some rehabilitation provisions are a part of the SSA disability programs. Any disability claimant may be referred to a state vocational rehabilitation agency, and the SSA reimburses the state agencies for those beneficiaries who eventually return to work for at least 9 consecutive months and who meet other specified requirements.

Beneficiaries may also take advantage of a trial work period during which they may work and earn money without forfeiting disability payments. (Under SSI, however, any such earnings affect the amount of the monthly payment.) This provision is available to beneficiaries whether or not they participate in a rehabilitation program. The trial work period is little used. The SSA estimates that fewer than 10,000 of the more than 6 million beneficiaries annually engage in trial work. Whether this is because they are too impaired to work, fear losing benefits, or have no incentive to return to work given the structure of the program is not clear (see Chapters 4 and 5). Other incentives intended to encourage rehabilitation include the extension of Medicare coverage for a period of time after a beneficiary has returned to work and a provision for special SSI cash benefits and extended Medicaid coverage for individuals who would normally lose eligibility because of SGA. In addition, under a program for achieving self-support, SSI recipients are permitted to set aside income or resources for a work goal, such as education and training. Little is known about the characteristics of the small number of people who take advantage of these provisions and what distinguishes them from the vast majority who do not. Such information would be very useful to have.

As discussed in Chapters 4 and 12, there is some contradiction between the two program elements—the stringent standard of proof required to be found "totally" disabled on the one hand, followed by a push to be rehabilitated.

Pain in Social Security Law and Regulation

The SSA revised several sections of its regulations pertaining to disability in August of 1980. The sections concerning the evaluation of symptoms were changed to include specific mention of pain as a symptom to be considered and evaluated in the determination of disability (see Goldhammer and Bloom, 1983). These regulations stated that pain and other symptoms could be the basis for a finding of disability only when medical signs and findings show a medical condition that could be expected to produce the pain. Social Security Ruling 82-58 further discussed the role of symptoms such as pain in the evaluation process, stating

The effects of symptoms must be considered in terms of any additional physical or mental restrictions they may impose beyond those clearly demonstrated by the objective physical manifestations of disorders. Symptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective and medical findings alone.

The SSA's policy as put forth in regulation was written into law in 1984 as Section 3(a) of P.L. 98-460, the Social Security Disability Benefits Reform Act of 1984 (see Social Security Administration, 1984a). This was the first time a standard for evaluating pain was codified in law. Part of the text reads

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 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.

Pain and the Application Process

The first indication that pain is involved in a disability case may come during the interview at an SSA district office. The claimant may describe pain as part of the reason for the disability, or the interviewer may ask questions that elicit the allegation of pain from the claimant. When pain does enter the picture at this early point, the interviewer asks about the effect of the pain on the claimant's capacity for basic functions such as sitting, standing, and walking. Information obtained by a district office interviewer is part of the file sent to the DDS for adjudication.

In the course of its information gathering, the DDS may obtain material from the claimant's treating or consulting physicians, from hospital records, and from interviews with members of the claimant's family or with friends who have knowledge of the individual. These sources may mention the presence of pain and may give information that corroborates the claimant's descriptions of pain.

When medical evidence is available that supports the claimant's allegation of pain, the claim can be resolved relatively easily. The difficulty arises when the medical evidence does not support the claimant's description of pain as to its severity, duration, and frequency, and when the determination cannot be made on the basis of other factors routinely considered, such as whether the condition meets or equals a listing.

In such cases, the adjudicator must consider all of the available information relative to the pain. This includes not only the medical evidence but also information from family, friends, neighbors, coworkers, or others who are familiar with the claimant and can provide additional information about the claimant and the effects of the impairment(s) and any related symptoms. Usually the claimant is asked to provide the names of such individuals, who may then be interviewed by a DDS employee. Such information may include descriptions of the claimant's daily activities, behavior patterns, and differences between the claimant's activities before and after the onset of the pain.

Much of the material in the file is obtained through the use of standardized forms on which are recorded information about the claimant's impairment(s), the onset of the condition, the date the claimant last worked, and the nature of this work. Many of the state agencies have developed special forms or revised versions of a basic form that are used to request information from specialists who have treated or examined a claimant. Although there is no system-wide standardized form for eliciting information about pain, a number of states have developed special questionnaires for cases in which pain is a particular issue. Some of these pain questionnaires are addressed to the treating physicians and ask for the history, nature, extent, duration, and severity of the claimant's pain as observed or treated by the doctor. Other pain forms elicit more information from the claimant, in terms of the pain's effect on daily activities, relationships with others, and the ability to work and carry out work-related activities.

Pain and the Sequential Evaluation Process

SSA has detailed operating guidelines for its adjudicators that include review of the law and regulations relative to the evaluation of pain. Adjudicators often must make a determination with information that, particularly in the past, was not adequate for eliciting or interpreting information about chronic pain. The increased use by some states of specialized forms for obtaining information about pain and the release of a Program Circular on the Evaluation of Pain (No. 05-85-OD) in August of 1985 serve to remind adjudicators of current SSA policies for the evaluation of pain.

The first step of the process, the judgment as to whether the claimant is working for substantial gain, is the same whether or not pain is alleged by a claimant. A person working at the level of substantial gain or above is not eligible for benefits, regardless of the severity of the impairment or the severity or frequency of pain or any other symptom.

At the second step, the decision as to whether or not an impairment is severe enough to significantly limit basic work activities must be based on a weighing of all the evidence, including reports of pain. When the pain described is out of proportion to the medical findings, the claim of pain must be further investigated to look for any limitations imposed by the pain in addition to those indicated by the medical evidence. Consideration may also be given to the possibility of a mental impairment as the basis for the pain.

The determination as to whether or not an impairment "meets or equals" a listing in the regulatory Listing of Impairments is the third step of the process. Pain appears among the required criteria for some listings. In such cases, the pain must simply be present, along with the other criteria; it need not be quantified: "Unless specifically indicated... quantification or evaluation of the intensity or the functionally limiting effects of that symptom is not required to determine whether the documented findings meet the requisite criteria" (Social Security Administration, 1985a). However, in determining whether an impairment is equivalent to a listing, pain cannot be substituted for a missing sign or finding. For example, a history of severe joint pain cannot make up for a lack of x-ray evidence when such evidence is required under a particular listing.

When no listing is met or equaled, so that residual functional capacity must be assessed, the limitations imposed by pain must be considered. Medical findings such as evidence of muscle atrophy, reduced joint motion, muscle spasm, and sensory and motor disruption are among the "usually reliable indicators of pain and the effect such pain may have on the individual's work capacity" (Social Security Administration, 1985a). When greater limitation clue to pain is reported than can be demonstrated by such objective findings alone, adjudicators are instructed to consider other evidence, including detailed 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 evidence, 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 individual'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 Secretary'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. 1963). 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 long 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 administrative adjudicator and that it is improper to determine that the claimant'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 laboratory 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. 1975); Baerga v. Richardson, 500 F. 2d 309 (3d Cir. 1974)). Until quite recently the two landmark cases on pain as a legitimate disability most often cited as authority by various courts were Marcus v. Califano, 615 F. 2d 23 (2d Cir. 1979), and Auerbeuf v. 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 evidence 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 substantial 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. 1984); we discuss this case in some detail because of its importance. Polaski was a beneficiary whose benefits had been terminated during the 1980-1981 reviews and who appealed this decision; the case was later expanded into a class action suit. Oral 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 disability results from a medically determinable physical or mental impairment, 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.L. 98-460, 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 Polaski 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 of the standard in P.L. 98-460, there have been cases appealed 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.

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 impairment 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 permanent 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 were non-service connected. About 60 percent of the VA's fiscal year (FY) 1985 budget was allocated to disability benefits, with $9 billion paid for service-connected disabilities and $6 billion for non-service-connected disabilities (Swansburg, 1985).

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 devices, an allowance for modifications to homes and automobiles if required by the disability, and vocational rehabilitation services. Vocational rehabilitation is not mandatory in order to receive or continue receiving benefits. It consists of counseling, job training or retraining, and job placement assistance.

Workers' Compensation

Workers' Compensation programs are state-run programs and there is much variability among them. The common element is the intent to compensate disability arising in the course of one's employment. Workers' Compensation programs provide three kinds of benefits: death benefits to an employee's survivors; wage-loss payments due to disability; and payment of hospital, medical, and 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 lower activity level is usually not a consideration in the award of Workers' Compensation benefits.

Workers' Compensation systems provide for four categories of compensable 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 recuperative 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 long-term receipt of benefits.

Private Disability Insurance

Income replacement is the benefit generally available under private disability insurance programs (see Soule, 1984). 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. Rehabilitation services may or may not be provided depending on the insurance 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.

Disability Compensation Programs in Western Europe

Similar variety exists between the SSA programs and disability compensation programs in other countries (see Wegner, 1986). European 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 provide temporary disability benefits, preferring to maintain individuals on temporary 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 retraining. 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.