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There is a great explainer in the Washington Post called Spoon theory: What it is and how I use it to manage chronic illness. The article, written by journalist Fortesa Latifi and illustrated by Lara Antal, has terrific graphic novel-style illustrations, including the one shown above. It conveys how those suffering with chronic illnesses (for example, long-haul COVID, chronic pain syndrome, fibromyalgia, CFS) have limited daily energy available for daily life, and the amount of energy available often varies from day to day.

Here is a short excerpt:

In the chronic illness and disability world, there’s something called “spoon theory.” Writer Christine Miserandino started it while explaining to a friend what chronic illness feels like, and grabbed a handful of spoons to make her point.

In the theory, each spoon represents a finite unit of energy. Healthy people may have an unlimited supply of spoons, but people with chronic illnesses have to ration them just to get through the day.

Spoon theory has become a shorthand for chronically ill people to explain how they’re feeling and coping day-to-day. And for me, it’s become a simple way to share with the able-bodied people in my life what I have the capacity for.

The article is a must-read, and the illustrations really encapsulate the issue of limited available daily energy. The “spoon” theory is a cogent way to explain to family and friends what it is like to live with a chronic illness. It is often exhausting.

As a Social Security disability lawyer, I frequently need to explain this issue to administrative law judges and to disability examiners. It is an uphill battle. Social Security’s disability process tends to focus on “nuts and bolts” issues, like how much can you lift and carry and how long can you sit and/or stand. The fact that on many days you just don’t have the energy to complete a normal workday is not really part of the framework.

Of course there is often discussion at hearings of “good” days and “bad” days, but this is a work-around. The basic architecture of Social Security’s disability process is not designed to adjudicate such claims. I am particularly concerned going forward with the long-haul COVID cases, which often should be evaluated in terms of “an RFC for complete inability to do sustained work-related activity.” See EM-21032 REV section 7. Those claimants simply don’t have enough spoons in a day.

As dedicated readers know, at Step 5 of the disability sequential evaluation, Social Security uses the Medical-Vocational Guidliness to determine disability. The guidelines, or “grids,” direct a finding of “disabled” or “not disabled” based upon a person’s age, physical RFC, education and past work/transferable skills.

If the medical-vocational guidlines direct a result of “disabled,” you win the case, regardless of what outdated jobs a vocational witness might name at a hearing. When briefing a claim for a judge, or communicating with a DDS disability examiner, you want to specify the vocational rule that applies for that claim.

I know what each rule will direct for a result, but often need to double-check the rule number. For example, I am briefing a claim for a 52-year old claimant limited to Sedentary work. Her past work was semi-skilled, but the mental RFC limits the claimant to simple tasks, which precludes the transfer of acquired job skills. The applicable rule is 201.14, which directs a finding of “disabled.”

The quickest way to quickly check the rule and the correct rule number is with the website gridrules.net. The website exists thanks to Georgia Social Security disability attorney Jonathan Ginsburg. For those who practice in this area, you should have the site bookmarked, as I do.

The Washington Post has an excellent article this week by reporter Lisa Rein, entitled “Social Security denies disability benefits based on list with jobs from 1977.” You should read the article in its entirety.

The Dictionary of Occupational Titles (DOT), published by the U.S. Department of Labor, is used by Social Security as the basis for the “vocational” data used when making a Medical-Vocational determination at Steps 4 and 5 of the disability sequential evaluation.

Social Security takes administrative notice of “reliable job information available from various governmental and other publications,” including the Dictionary of Occupational Titles. See 20 C.F.R. 404.1566(d).

As the article explains, the DOT has not been updated since 1991, and some of the jobs listed in it date back to 1977. Most of the jobs listed are obselete, and the remaining ones have changed markedly since 1991. It is fundamentally unfair to deny a claim for disability benefits based upon jobs data that is over 30 years out of date. But it happens every day.

Of course, this is not news to those of us who specialize in this area of practice. I have had to explain to clients many times why claims were denied based upon jobs that no longer exist. It is intensely frustrating, particularly for the clients.

It is good to see this injustice exposed to the broader public by the national press. But we are years away from any change to this system, unless U.S. Circuit Courts beyond the 7th Circuit, which has been a leader in this area, finally bring an end to the practice.

Effective today, December 1, 2022, the Federal Rules of Civil Procedure (“FRCP”) have been amended to include Supplemental Rules for Social Security Civil Actions under 42 U.S.C. § 405(g).

According to NOSSCR’s email to its members, highlights of the new rules include:

Pleading Requirements for the Complaint
Under the new FRCP Rule 2, a complaint filed in federal court must include the following information:

  • State that the action is brought under §405(g)
  • Identify the final decision to be reviewed, including any identifying designation provided by the Commissioner with the final decision, usually the Beneficiary Notice Control (BNC) Number provided on the ALJ and AC decisions
  • State the name and the county of residence of the person for whom benefits are claimed
  • Name the person on whose wage record benefits are claimed
  • State the type of benefits claimed

Briefing Schedule
Rule 6 provides that “[t]he plaintiff must file and serve on the Commissioner a brief for the requested relief within 30 days after the answer is filed or 30 days after entry of an order disposing of the last remaining motion filed under Rule 4(c), whichever is later.”  Rule 7 provides “[t]he Commissioner must file a brief and serve it on the plaintiff within 30 days after service of the plaintiff’s brief.”  Rule 8 provides “[t]he plaintiff may file a reply brief and serve it on the Commissioner within 14 days after service of the Commissioner’s brief.”

The new rules do not restrict the authority of the district court to grant extensions, but, currently, requests for an extension of time are considered on a case-by-case basis.

If your district has local civil rules with briefing schedules that differ from the new briefing schedule, the new FRCP Supplemental Rules will supersede the existing local rules.

Disability Determination Services (DDS) state agencies make initial and reconsideration determinations on Social Security disability claims. These agencies have had massive turnover in the past few years. I used to work repeatedly with the same group of disability examiners. These days, I am constantly seeing new examiners. Adding to the turnover problem, it takes months to train a new disability examiner. This is causing significant delays with claims at DDS agencies.

In New Hampshire, for example, pending cases at Reconsideration are spending over 180 days in “staging” before a new disability examiner is even assigned. That’s 6 months just waiting for the claim to be assigned. Making a new determinsation will take another 3-4 months. That is just too long.

An ALJ decison regarding TItle II disability usually contains a sentence like this:

The claimant’s earnings record shows that the claimant has acquired sufficient quarters of coverage to remain insured through December 31, 2024.

A successful disability claimant may read that sentence and think that it means that the Social Security disability benefits will terminate on December 31, 2024. But that is not what the sentence means at all.

This language in the decision simply refers to the date last insured, which is the date by which disability must exist to qualify for disability benefits under Social Security’s rules. The date has nothing to do with continuity of benefits once a claim is granted. Do not worry if you see this language in your fully favorable ALJ decision.

If you receive a fully favorable ALJ decision, your disability benefits will continue until you get better, or return to work at the SGA level, or reach retirement age, or die.

Substantial Gainful Activity (SGA) is the amount of money that one can earn and still qualify for Social Security disability benefits. The amount is adjusted each year for inflation, as shown by this table. In 2022, the amount is $1,350. For 2023, the amount goes up to 1,470.

The SGA amount is important for two groups 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).

 

Last month, my hearings with an administrative law judge (ALJ) to determine medical eligibility for Social Security disability benefits followed the usual, familiar pattern: opening remarks by the judge and then the claimant’s lawyer (me), the claimant’s testimony, and then testimony of a vocational witness regarding the claimant’s past relevant work, and whether various functional limitations would preclude that past relevant work and/or other work. This, broadly speaking, is pretty much the course of most hearings. At the close of the hearing, the judge often will say something like “Thank you for coming today. I will review the record and issue a written decision soon.”

In two of my hearings last month, however, the judge said this, instead: “Based upon my review of the file, your testimony, and the testimony of the vocational witness, I will be issuing a Fully Favorable decision.”

What a difference that makes! While we all have to wait for the written decision to be issued, it gives tremendous relief for the claimant to hear from the judge that the claim for Social Security disability benefits will be granted. There is no uncertainty or worrrying while waiting for the decision. It is an act of grace, really. I wish judges would follow this example more often.