Last Update: 05/20/1992 (Transmittal I-5-401A)
HA 01540.023 Avery, et al. v. Secretary of HHS
Renumbered from HALLEX section I-5-4-23
Table of Contents
| I | Purpose |
| II | Background |
| III | Guiding Principles |
| IV | Inquiries |
ISSUED: August 11, 1992
I. Purpose
This Temporary Instruction (TI) explains the impact of the pain
regulations published November 14, 1991 (56 Fed. Reg. 57928), on the
adjudication of cases arising in the First Circuit.
II. Background
On July 16, 1986, the United States Court of Appeals for the First Circuit
rendered a decision in Avery, et al. v. Secretary of
HHS upholding SSA's general approach to evaluating allegations
of pain in disability claims. The court ruled that plaintiffs' challenge
to Social Security Ruling
82-58 was moot in view of SSA's issuance of and reliance on Program
Operations Manual System (POMS) DI T00401.570.
On September 30, 1986, OHA issued Staff Guides and Programs Digest (SGPD)
Bulletin No. III-21(86) to advise OHA components of the pain standard to
be applied in the First Circuit, pursuant to the court of appeals' order.
The SGPD Bulletin was subsequently converted to
HALLEX TI 5-4-23. The TI directed OHA
adjudicators to apply the POMS pain standard to all First Circuit pain
cases until such time as appropriate regulations were published or further
guidance was issued. On November 14, 1991, SSA published final rules to
expand the Agency's regulations on the evaluation of pain and other
symptoms.
III. Guiding Principles
The POMS instructions approved by the First Circuit in
Avery are fully consistent with the regulations
published on November 14, 1991. Accordingly, it is no longer necessary, or
appropriate, for OHA adjudicators to use or cite the POMS pain evaluation
instructions. The regulations are now the appropriate standard for OHA
adjudicators to use in evaluating pain and other subjective complaints of
claimants in the First Circuit. Nonetheless, because Avery ratified the
POMS standard for evaluating pain that has now been incorporated into the
amended pain regulation, and because the courts in the First Circuit have
consistently cited to Avery in cases involving
allegations of pain, Avery continues to be a
relevant case. Accordingly, adjudicators should indicate in their
decisions evaluating pain that the regulations do not represent a change
in the Agency's policy, but rather are wholly consistent with the
pronouncements of Avery.
IV. Inquiries
Hearing office personnel should direct any questions to their Regional
Office. Regional Office personnel should contact the Division of Field
Practices and Procedures in the Office of the Chief Administrative Law
Judge at (703) 305-0022.