When I prepare a client for a hearing, I always urge the client to provide specific examples of functional limitations…. better than blanket statements.
I have learned over the years that the more time I spend with the client, the better I am able to tease out these stories. I have long felt that they can make a big impact on a hearing.
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.
If you qualify for Social Security disability benefits, your minor children are also awarded benefits. These benefits are in addition to your monthly disability payments, and are intended to help provide the necessities of life for your children. If you remain disabled, the children’s benefits will continue until their 18th birthday (a child still in high school can receive benefits until age 19).
It is a significant amount of additional money. A child’s benefit typically is 50% of the parent’s monthly disability benefit. However, there is a “family maximum” of monthly benefits allowed.
Be sure to tell Social Security about your minor children when you apply for disability benefits, and be sure to tell your Social Security disability lawyer about your minor children so that your lawyer can follow up with the local Social Security field office to make sure these benefits are paid, once your disability is established.
Those applying for Social Security disability benefits want to know when their claim will be decided. Since by definition a disabled person cannot work, the wait for a decision is a real struggle for most disability claimants. However, there are a couple of steps you can take to speed up the disability claim process.
First, when Social Security sends you forms to be completed, complete and return them right away. Many claims are delayed for weeks or months because the claimant is slow to return necessary paperwork.
Second, if you receive a denial letter from the SSA, contact a Social Security disability lawyer and appeal right away. Why wait? Although you are allowed 60 days to appeal, do it right away. Both an initial denial and a reconsideration denial must be appealed before getting to an ALJ hearing. That is two 60-day appeal periods. You can shave 4 months off your waiting period by acting promptly.
The things you tell your doctor about how you are doing (and what you are doing with your time) frequently end up in your medical progress notes. These progress notes provide your doctors with context and information about your condition.
Anyone applying for disability needs to know that those medical notes become part of the record for your disability claim. These notes are read carefully by the people making decisions on your claim, whether that person is a disability examiner or an administrative law judge.
I hate to say that you have to be careful what you tell your doctor, but you have to be careful what you tell your doctor. Because those statements made to your doctor are considered when the medical evidence is assessed by a decisionmaker.
I had a hearing once for a claimant disabled by chronic pain. The record contained a treating doctor’s progress note stating that the patient “was helping a neighbor build an addition to his house.” Now it turns out that the claimant was knowledgable about construction, and was simply walking next door to give his neighbor advice about how to proceed. He never picked up a tool or lifted a board. There is nothing inconsistent with that activity and a finding of disability due to chronic pain; people in pain still socialize, and carry on their lives as best they can.
But even when the actual facts are explained to the judge, questions can remain. As a result, a case can become more difficult to win when doctors’ notes contain certain statements about the patient’s activities.
So be careful what you say to your doctor, because it may end up in your medical notes in a way that can raise questions about your claim.
The first thing I check I receive a hearing notice for a Social Security disability claim, other than the date and time of the hearing, is the name of the administrative law judge (ALJ) who will hear the case and decide the claim. It probably shouldn’t matter which judge hears your case, since they all interpret the same rules and are looking at the same facts. But it really does matter.
Each judge approaches a claim a little bit differently, and it is very helpful to know how a particular judge tends to look at a case. Also, each judge conducts the hearing in a particular way, so I prepare for the hearing in a way tailored to the ALJ who will hear the case.
I handle disability and SSI cases primarily in Maine and New Hampshire, so I see the same judges again and again. They know what to expect from me, and I have learned what to expect from them.
Now, you do not get to pick the judge that decides your case. However, you do get to pick the lawyer who handles your case. It is important, in my opinion, to obtain the assistance of a Social Security disability lawyer who has experience with the judges in your area.
I talk with many prospective disability clients who are clearly unable to perform their past relevant work. I spoke recently with a person who had been a welder for years, but could not continue due vision and to degenerative back problems. He clearly is not going to be able to work as a welder, his sole past occupation. But that only gets you part of the way to Social Security disability benefits.
Social Security considers your ability to do “other work” at step 5 of the sequential evaluation. This includes unskilled, sedentary work. Social Security will consider your ability to do this type of work to be available if it exists in substantial numbers in several areas of the country.
