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I frequently talk to clients and potential clients, who say “I am diagnosed with x, y, and z,  so I cannot work.” I hear this statement almost every week.

Here is how I respond:

“Well, x, y, or z can certainly be a basis for disability. But the issue in your case, and the reason your claim for disability benefits has been denied so far, is that Social Security needs to assess the severity of your symptoms from these ailments. Your diagnosis was a necessary step, but it is just the first step. The big issue is: what are your functional limitations that result from your diagnoses, and do those functional limitations prevent gainful employment on an ongoing basis?”

Disability is functionality. Your ability to function in the workplace is the issue in your disability case.

The task for disability claimants and disability lawyers is to provide evidence of those functional limitations. Ideally, that evidence includes the patient’s medical progress notes, as well as opinions from treating physicians. Evidence can also include statements by nonmedical sources, including family and friends (see 20 C.F.R. 404.1502 (e)). Lastly, your testimony at the hearing will address your functional limitations. At the hearing judges usually want to know about your activities of daily living, so that they can infer your level of functioning from that evidence.

There are many pieces to a successful claim for disability benefits. Understand that your diagnosis is just a beginning step to establishing disability.

I have three clients at various stages of the Social Security disability process whose past relevant work is solely as a surgical technician, or surgery tech. Obviously, assisting the doctor in the operating room is a demanding job. The Dictionary of Occupational Titles describes the job as Light, SVP 7 (DOT Code 079.374-022). According to Selected Characteristics of Occupations (SOC), the companion volume to the Dictionary of Occupational Titles, the job requires frequent (up to 2/3rds of a workday) reaching, handling, and fingering, which makes sense.

The ability to perform past relevant work must be ruled out in every disability claim, or the case will be denied at step 4 of the sequential evaluation used in every Social Security disability case.

What’s interesting is that each of these clients is unable to perform the past surgery tech job for a different reason.

  • Client 1 has polyneuralgia, and does not have the use of the hands required for the job. Before having to stop work, this client dropped instrument trays all the time. That is not acceptable in the environment of the operating theater.
  • Client 2 can’t do the standing required by the job, and by Light exertional work in general, due to back and joint problems.
  • Client 3 has severe anxiety, which prevents this client from maintaining the focus and concentration required for this job. This client has other impairments, but anxiety is the thing that most clearly precludes this type of work.

I am confident that with a little help in the form of opinions from treating doctors, I will be able to rule out past relevant work in each of these cases. So bear in mind, either physical or mental impairments (or a combination) can be used to rule out past relevant work.

At step 4 of Social Security’s sequential evaluation, the SSA considers whether or not you have the ability to return to your past relevant work. The SSA considers your past work, both 1)  as you performed it (and described it in your Work History Report), and 2) how that work is generally performed in the national economy. See Ruling 82-61.

To determine how the work is generally performed in the national economy, the SSA looks to the Dictionary of Occupational Titles (DOT) for a description of your job. For example, if you were a cashier, the SSA would look at the requirements of that job both as you described it and as it is described in the Dictionary of Occupational Titles.

I just had this discussion with a client. His claim was denied at Reconsideration because, according to Social Security, he was able to perform one of his past relevant jobs as generally performed in the national economy. The client was adamant that he could not perform that job, given all the walking it required. He even sent me a read-out from his Apple watch showing how many steps a day he took while performing that job (7,500 steps a day on average, if you are wondering). But it doesn’t matter, because Social Security will also consider how that job is generally performed in the national economy.

You have to be prepared to rule out the claimant’s ability to perform past relevant work both as performed and as generally performed in the national economy.

Certain findings in a Social Security disability case are reserved to the Commissioner. Particularly, the determination of whether or not your are disabled is reserved to the Commissioner. See 20 C.F.R. 404.1520b(c)(3). Therefore, your doctor’s opinion that you are disabled in given no special significance by the SSA.

In fact, the heading for this section of the regulations is “Evidence that is inherently neither valuable nor persuasive.” That is an emphatic statement!

Section (3) of 20 C.F.R. 404.1520b(c) gives a list of statements on issues that are reserved to the Commissioner:

(i) Statements that you are or are not disabled, blind, able to work, or able to perform regular or continuing work;

(ii) Statements about whether or not you have a severe impairment(s);

(iii) Statements about whether or not your impairment(s) meets the duration requirement (see § 404.1509);

(iv) Statements about whether or not your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1;

(v) Statements about what your residual functional capacity is using our programmatic terms about the functional exertional levels in Part 404, Subpart P, Appendix 2, Rule 200.00 instead of descriptions about your functional abilities and limitations (see § 404.1545);

(vi) Statements about whether or not your residual functional capacity prevents you from doing past relevant work (see § 404.1560);

(vii) Statements that you do or do not meet the requirements of a medical-vocational rule in Part 404, Subpart P, Appendix 2; and

(viii) Statements about whether or not your disability continues or ends when we conduct a continuing disability review (see § 404.1594).

These statements, if adopted, would tend to direct the determination of disability, and must therefore be made by the SSA.

In practice, however, it is terribly frustrating to have a treating doctor’s opinion dismissed by a DDS examiner or an ALJ because the issue is reserved to the Commissioner. The solution to this problem is to ask your treating doctor for specific opinions regarding the nature and severity of your functional impairments. Your doctor’s opinion regarding your diagnosis and functional limitations will be considered by Social Security.

Substantial Gainful Activity (SGA) is the amount of money you can earn from wages and still be eligible for Social Security disability benefits. The SGA amount is important for two classes of people:

A person applying for disability benefits must have (or be expected to have) a period of 12 consecutive months with wages below SGA (subject, of course, to the rules for unsuccessful work attempts and Impairment Related Work Expenses).

A person receiving Title II disability benefits can earn up to the SGA amount and still receive benefits (be sure to also take a look at the trial work rules).

The SGA amount for 2021 is $1,310. Each year it is adjusted for inflation. For 2022, it will be $1,350. Here is a table showing SGA amounts by year.

 

 

Social Security has a number of policy rulings that expand upon the regulations contained in the CFR. Social Security Rulings are binding on all components of the Social Security Administration, in accordance with 20 CFR 402.35(b), and are to be relied upon as precedents in adjudicating cases.

Anyone serious about representing clients before the Social Security Administration needs a good working knowledge of the rulings. The rulings can win cases for you, and can help to frame issues in a Social Security disability case.

The SSA’s website has a list of Social Security Rulings by Year. It is worth bookmarking on your computer, so you have the full list of rulings readily available. Each listed ruling is linked to the actual ruling, so it is an excellent reference. There is also a list of Rulings by subject matter.

The lists makes it easy to find a Ruling if you only remember the year or the topic. But the lists are also worth browsing, and you may find a Ruling you either did not know about or had forgotten about.

An “on the record” (OTR) request asks Social Security to grant your case on the record without a hearing. This request is for claims pending at the hearing level at the Office of Hearings Operations (OHO).

OTRs are favored by Social Security, because they save valuable resources. Why go though the hearing process if the claim is definitely going to be granted? Cases granted on the record can free up scarce resources for more complicated claims.

What’s nice about on the record decisions is that they can only be fully favorable. You cannot lose your case on the record. Rather, if the OTR request is denied, your claim simply stays in line for a hearing.

Although there is nothing to lose by filing an OTR request, they should only be filed in a minority of cases, where a favorable result is mandated by the evidence and by Social Security’s rules and regulations. Also, the medical evidence in the record should be up to date before an on the record request is filed.

Two areas where an OTR is certainly appropriate are 1) if the claimant meets a listed impairment, or 2) if the claim would be decided favorably at step 5 by the Medical-Vocational Guidelines. Such claims can be clear-cut winners. Claims that require a decision based on subjective evidence (such as the level of your pain), or claims that would require vocational evidence, are not strong candidates for an on the record decision.

I enjoy my Social Security disability law practice. I have focused on this area of law for over 15 years, and I know what a difference an award of disability benefits can make to my clients.

I learned of a Fully Favorable decision for a client earlier this week. This case was out of the ordinary because I was just retained last month. The client has Meniere’s disease, which affects the vestibular labyrinth/inner ear. Despite frequent attacks of vertigo, with the tinnitus and hearing loss characteristic of Meniere’s disease, the case had been denied initially and again at Reconsideration. The client hired me after the case had already been set for a hearing.

The client had undergone evaluation and treatment from ENT specialists, and her hearing loss was documented by audiometry. But the record did not contain vestibular testing, typically videonystagmography (VNG) testing, that would nail down the Meniere’s diagnosis and establish the inner ear problem as the cause of her disabling vertigo. I asked the client about this, and she said she had undergone some sort of testing from her ENT, but didn’t really remember what. We obtained the test results, and the test was in fact a VNG test with abnormal results. I submitted the test results to her Social Security claim file.

With the VNG test results in the record, it seemed to me that Listing 2.07 was met. I drafted a detailed on the record request, describing the medical documentation of frequent episodes of vertigo, tinnitus, and hearing loss measured by audiometric testing, and of course the abnormal vestibular test results. I submitted the request to the judge, stating that since the listing requirements were met by the medical evidence in the file, the claim could be granted without the necessity of a hearing. The judge agreed, and issued a concise Fully Favorable decision on Monday.

The entire process, from the day of my initial consult with the client to the date of the Fully Favorable decision, took less than 6 weeks.

I am not the only lawyer producing content about Social Security disability law. Here is a list of recent notable posts regarding Social Security disability claims:

Jonathan Ginsberg, Being Prepared for Your Social Security Disability Telephone Hearing (December 10, 2021)(video)

Morgan H. Zavadil, Social Security Disability Hearing: Past Work Inquiry And Importance, Midwest Disability (December 1, 2021)

Neil Good, Guidelines for Answering a Social Security Function Report, Good Law Group Blog (October 20, 2021)

Lawrence Rohlfing, Sedentary, Simple Repetitive Tasks Equals No Significant Work, California Social Security Attorney (October 16, 2021)

John L. Keefe, What To Look For In Your Social Security Disability Denial Letter, Keefe Disability Law Blog

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:

  • In General
  • Prior to an Administrative Law Judge Hearing
  • After an Administrative Law Judge Hearing
  • Actions Before the Appeals Council

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.