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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.

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.

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.

Continue Reading Look at the DEQY