I-5-4-23.Avery, et al. v. Secretary of HHS
ISSUED: August 11, 1992
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.
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.
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.