Can an ALJ Disbelieve Your Testimony About Your Symptoms?


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Can an ALJ disbelieve your testimony about your symptoms?

Published on February 12th, 2020 by Eric Slepian

The answer is yes, but only if the administrative law judge applies the right legal standards, which are stringent. It is not uncommon for an ALJ to miss the mark and wrongly discredit a claimant’s report of their symptoms.

Many applicants for Social Security Disability Insurance or Supplemental Security Income, commonly referred to as SSDI or SSI, have their claims denied initially and on their requests for reconsideration. At the next level of appeal within the Social Security Administration, or SSA, the agency holds a hearing before an ALJ.

At the hearing, the claimant and any witnesses they bring will testify. The judge and the claimant’s legal representative can ask questions. The SSA may bring in a vocational expert or medical expert.

This face-to-face discussion between the claimant and the ALJ – who acts like an actual judge but is an SSA employee performing a judicial function – is the agency’s opportunity to assess the claimant’s credibility. The ALJ will be able to listen to the claimant’s testimony about symptoms – physical and mental, subjective and objective.

It is especially important that the ALJ carefully listen to claimant testimony about subjective (invisible to others and not measurable) symptoms like pain, weakness, dizziness, numbness and fatigue. The ALJ must follow federal law when they assess the claimant’s reported symptoms.

The U.S. District Court in Arizona in the January 2019 case of Sorber v. Commissioner of Social Security Administration explained the legal standards binding the ALJ in their evaluation of subjective symptoms. The judge wrote that an ALJ must apply a two-step analysis:

  1. The claimant must have objective medical evidence of a medical impairment that could reasonably produce the alleged subjective symptoms. They do not need to directly link the impairment to the pain or other symptom.
  2. If the first requirement is established, the ALJ assesses the “intensity and persistence” of the subjective symptoms and how they limit work activities. The ALJ must accept the claimant’s testimony about symptoms unless the ALJ finds evidence of malingering (exaggerating or falsifying symptoms) or if the ALJ finds “clear and convincing reasons” to discount the testimony about symptom intensity. One reason to discount symptom testimony is inconsistency with robust daily activities.

Proper ALJ evaluation of pain and other subjective symptoms can be a crucial legal issue in a claim, especially one involving impairments largely expressed subjectively like fibromyalgia, chronic pain syndrome, migraines and chronic fatigue syndrome.

(The Sorber case is available on Westlaw at 362 F.Supp.3d 712.)

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