The Social Security Administration’s website has a list of Best Practices for Claimant’s Representatives, which was significantly updated last November.
The best practices are organized into categories:
This list of best practices is required reading for Social Security disability lawyers. It is worth revisiting every now and then. Please take a look.
Ascites, which is fluid build-up in the abdomen, can occur when pressure builds up in the veins of the liver and the liver doesn’t function as it should. The most common cause of ascites is cirrhosis of the liver. The abdominal fluid can be drained periodically by a procedure called paracentesis. Patients with severe liver diease may have several liters of fluid drained during a paracentesis.
Social Security has a listed impairment that addresses this condition when it is due to chronic liver disease. Listing 5.05 B.1. states:
Ascites or hydrothorax not attributable to other causes, despite continuing treatment as prescribed, present on at least 2 evaluations at least 60 days apart within a consecutive 6-month period. Each evaluation must be documented by:
1. Paracentesis or thoracentesis;
See also 5:00D.6. “The required findings must be present on at least two evaluations at least 60 days apart within a consecutive 6-month period and despite continuing treatment as prescribed.
As listings go, this one is fairly straightforward, and easy to evaluate if you know what to look for. Once the medical records are obtained and reviewed, each paracentesis procedure will be shown.
Someone who meets the listing likely has other symptoms of chronic liver disease, such as fatigue, and may be found to be disabled on a medical-vocational basis at step 5 of the sequential evaluation. But the listing has fewer variables and can get the claim decided much faster, often without a hearing.
When deciding a disability claim, the Social Security Administration looks at whether an individual is able to perform the duties of a job at steps 4 and 5 of the sequential evaluation. Social Security does not consider whether an individual would be hired for that job.
Social Security’s regulations directly address this issue.
20 CFR 404.1566(c) states:
(c) Inability to obtain work. We will determine that you are not disabled if your residual functional capacity and vocational abilities make it possible for you to do work which exists in the national economy, but you remain unemployed because of—
(1) Your inability to get work;
(2) Lack of work in your local area;
(3) The hiring practices of employers;
(4) Technological changes in the industry in which you have worked;
(5) Cyclical economic conditions;
(6) No job openings for you;
(7) You would not actually be hired to do work you could otherwise do; or
(8) You do not wish to do a particular type of work.
Social Security will match your functional abilities against the requirements of of jobs in the national economy. For the purposes of a Social Security disability determination, it doesn’t matter if no employer would hire you.
From time to time I ask certain clients to keep a journal to keep track of their symptoms. For people with symptoms that are variable day to day, a journal can be be a good tool to quantify how often the symptoms are severe.
Every case is different, and everyone’s symptoms are different. So a journal is not for everyone. But for some disability applicants with fibromyalgia, chronic fatigue syndrome, migraines, vertigo, or chronic pain, a daily journal can really help.
These impairments do not fit well into the Social Security physical RFC format, because on a given day, a claimant may be able to perform all the requirements of light or sedentary work. The next day, however, the same claimant may be unable to get out of bed due to symptoms from the impairment.
The most likely route to a favorable decision for such a claim is that the administrative law judge determines that for several days each month you will be unable to work due to your impairment. The vocational expert that typically appears at these hearings will likely testify that there are no jobs for a person that would miss 2 or more days of work a month on an ongoing basis. As a result, the judge rightfully concludes that you are unable to work on a “regular and continuing basis” and therefore qualify for Social Security disability benefits (see Social Security Ruling 96-8p).
You can help the judge make this determination by keeping a journal, so that you have an accurate record of how many “bad days” you have each month due to your impairment.
It is Veterans Day.
The Social Security offices are closed today, as is our office.
For a side-by-side comparison of the Social Security disability and Veterans Affairs disability programs, check out this fact sheet.
At the hearing level, the SSA adds to the disability claim file a document called the “Detailed Earnings Query,” or DEQY. The DEQY lists all the employers that have paid wages (and the amount of annual wages paid), during the past 15 years. Fifteen years is the time frame for past relevant work for Step 4 of the sequential evaluation of a Social Security disability claim.
When past relevant work is critical to a claim (Social Security disability claimants over the age of 55 suffering from physical impairments, in particular), a Representative needs to look very carefully at the DEQY, so that all past relevant work can be properly classified and evaluated.
Let me give an example, one that turned out fine but could have been a disaster.
Why does an administrative judge request a review by a vocational expert of the jobs from a claimant’s work record?
It means that the administrative law judge (ALJ) is considering whether or not you can return to your past relevant work at step 4 of Social Security’s sequential evaluation process. After the vocational expert (VE) characterizes your past jobs, the judge will ask the VE whether or not a person with your limitations could return to any of those previous jobs. If the VE answers yes, you have probably just lost your disability claim.
If the VE answers no, the judge will then proceed to step 5 of the sequential evaluation process. The judge may then ask the VE if there are other jobs available to a person with your impairments. Hopefully the answer to this question is also no.
Vocational expert testimony can be complicated, and it often a determines whether or not your claim for diability benefits is is granted. Please do not attend a disability hearing without a Social Security disability attorney.
Back in the day, the vast majority of granted Social Security disability claims were decided by Social Security’s listed impairments, which set forth medical criteria of a condition that is presumed to be disabling at step 3 of the sequential evaluation. Today, however, the majority of allowed claims are determined based upon medical-vocational factors at step 5 of the sequential evaluation.
Therefore, as a practical matter, disability is functionality. Your claim will be allowed or not based upon your functional limitations, and how they affect your ability to do work-related activities. In the context of Social Security disability, this concept is expressed as Residual Functional Capacity (RFC).
Your Residual Functional Capacity is the cornerstone of your Social Security disability claim. The RFC is Social Security’s assessment of your abilities to do sustained physical and mental activities on a regular and continuing basis in a work setting. The RFC considers only those funtional limitations resulting from medically determinable impairments. See 20 CFR 404.1545 and Social Security Ruling 96-8p.
Social Security looks at your ability to do basic things for an 8-hour workday, such as lifting and carrying, standing and walking, and sitting. For those with mental impairments, the SSA will assess the ability to maintain focus and concentration, to follow simple instructions, and interact with other people throughout a workday. These are very basic requirements of any employment.
The resulting RFC is used to determine whether or not you can return to your past relevant work (step 4 of the sequential evaluation) or do other work (step 5 of the sequential evaluation).
The administrative law judge must assess your RFC from the information contained in the disability claim file. Evidence of your work-related limitations can be provided by your medical records, or by opinions from your treating medical providers regarding your functional limitations. .
Non-medical evidence can also help to establish your RFC. Limits in your daily activities tend to demonstrate functional limitations. A statement from a spouse or friend may also help to establish your RFC. Testimony at the hearing regarding specific examples of your limitations can also assist the judge to assess your RFC.
With both medical and non-medical evidence, the goal fo a disability lawyer is to establish physical and/or mental limitations that preclude your ability to work on a regular and continuing basis.
The frequency of your medical treatment is an important factor in your Social Security disability claim. A diagnosis is a first step, but a judge must evaluate your functional limitations due to your medical condition. And when evaluating the seriousness of your functional limitations, regular doctor visits are helpful. Looking at the cases of mine that were not granted in the past year or so, the lack of medical treatment played a role in almost every one.
There a lots of reasons not to go to the doctor. There are co-pays. Sometimes there is little the doctor can do for you. Perhaps you do not want to complain to the doctor about your daily struggles. But without regular doctor visits, you may have an uphill battle for disability benefits.
Also, the more the doctor sees you and is familiar with your condition, the more likely that the doctor will provide an opinion regarding your functional limitations. Those opinions are often the most persuasive medical evidence available to a person seeking disability benefits.
So please, go to the doctor.
When Social Security Security evaluates a claim for disability, it uses a 5-step sequential evaluation. For steps 4 & 5 of the sequential evaluation, Social Security assesses your functional limitations and incorporates those limitations into a Residual Functional Capacity (RFC). That RFC is then compared to the requirements of competitive work to determine whether or not a person claiming disability is disabled under Social Security’s rules.
When evaluating a claim for disability, the RFC assessed by the state Disability Determination Services (DDS) should always be the starting place. What limitations did the state agency find? What work would be precluded by the RFC? These are the first questions to explore when evaluating a claim.
From this starting place, one can then evaluate the medical evidence to see what evidence may be missing and what could be supplemented. As always, obtaining opinions from a treating medical provider regarding a patient’s functional limitations is highly desirable.
An administrative law judge will often use the DDS RFC as a starting point (and sometimes, a finishing point). Even though an ALJ hearing is a de novo review of the claim, the DDS RFC is always considered.
Early involvement by a disability lawyer in the disability claim can help. If the lawyer by developing evidence can move the RFC closer towards disability at the state agency level, then it may be easier to establish disability at the ALJ hearing. The case may also be won your case at Reconsideration, which is even better. Either way, the early involvement of a disability lawyer can help to frame the issues and develop the evidence well before the judge takes a first look at the case.