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Social Security has started sending a paper booklet along with the Notice of Award letter to those whose claims for Social Security disability benefits have been granted. The booklet is entitled “What You Need to Know When You Get Social Security Disability Benefits

It is a good practice. People are (almost always) receiving disability benefits for the first time. They do not know what to expect, and may not understand their responsibilities when receiving disability  benefits.

Hopefully the booklet will help.

I’m not the person I used to be.

Social Security disability applicants sometimes tell me this when I meet with them to discuss their claims. At the hearing, I will ask them to explain to the judge why they are a different person today than when they were able to work. It is usually compelling testimony.

Simply losing the ability to work on an ongoing basis is a life-changing event. It leaves many people isolated, depressed, and anxious. It is a very difficult road to travel, and it can change who you are as a person.

Additionally, many clients are dealing with loss of functionality that affects their daily activities. They cannot do what they used to do. They may be dealing with chronic pain every day. It can change you.

Always tell the judge how your life has changed.

When I see that a Social Security disability case has been closed, I review the ALJ decision online long before the paper copy arrives in the mail. For unfavorable decisions, of course you are looking at the reasoning of the decision, and for flaws that would support an appeal to the Appeals Council.

But it is worth reviewing your Fully Favorable decisions as well.

One reason is to see what RFC the judge adopted, and therefore what theory of disability was accepted by the judge. It is valuable to know what was persuasive to the judge, as a reference point for future cases.

Also, when reviewing your Fully Favorable decisions, check the onset date in the decision to make sure it is correct. It almost always is. But I just had a case where the onset date was amended at the hearing. That amended alleged onset date was June 1, 2020. I confirmed that  date in a post hearing letter. When the decision was issued, however, it had the onset date listed as June 1, 2022. Yikes! That change would eliminate two years of disability benefits for the client.

It was clearly a typographical error, and it was quickly fixed with a phone call and a faxed letter to the hearing office. Fortunately I caught it on the day the decision was issued. Had I not caught it, we would not have known about the problem until the Notice of Award arrived, perhaps weeks later.

Take a few minutes to review your Fully Favorable decisions before calling your client and giving them the news.

Social Security requires a medically determinable physical or mental impairment as the basis for a finding of disability. The “medically determinable” language is part of the definition of disability in the Social Security Act itself. See 42 U.S.C. 423(d)(1)(A).

The impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source. See 20 C.F.R. 404.1521.

The requirement for a medically determinable impairment (MDI) is to ensure there is a valid basis for your claim, and for the functional limitations you are asserting.

Some illnesses can be problematic in the MDI department. Social Security has had to clarify how the MDI requirement can be met for certain illnesses. For example, Social Security has issued rulings stating that post-polio sydrome, fibromyalgia, and migraines can meet the requirement for a medically determinable impairment. The rulings set forth criteria for those diagnoses, and when those criteria are met, these impairments satisfy the “medically determinable” requirement, and can support a determination of disability.

I have a two cases at DDS for “long-haul COVID,” and am wondering of we will run into MDI problems with that diagnosis. The SSA has no criteria for what “acceptable clinical and laboratory diagnostic techniques” are necessary for a diagnosis of long-haul COVID, and has issued no ruling on this topic. So if your doctors evaluate you and diagnose you with long-haul COVID, and treat you for long-haul COVID, that diagnois should not be second-guessed by the SSA.

Lastly, sometimes it takes a while for the medical evidence to catch up with the symptoms. I just received a Fully Favorable decision this month for a client with a tramautic brain injury (TBI). When that case was evaluated by Social Security at the initial and reconsideration levels, it was denied because there was no medically determinable impairment. At that time, the client was experiencing serious, disabling symptoms, but had not yet received the medical testing to support a diagnosis.

By the time of the hearing, the medical evidence had developed substantially. The client had an MRI of the brain, and also vision-tracking testing from an optometrist (TBI patients often have vision issues). Both tests produced abnormal results, and the treating neurologist gave her a TBI diagnosis. With that diagnosis, supported by objective testing, the requirement for a medically determinable impairment was satisfied. The client was quickly awarded disability benefits after the hearing.

We all lose a disability claim now and then. When the claim really should have been granted, the next step is drafting a Request for Review for the Appeals Council. Like most appeals of Social Security disability claims, there is a 60-day deadline for the appeal. But the best time to write a first draft of an appeal is right away, as soon as you receive the unfavorable decision, while the case is fresh in your mind and you are incensed at the injustice of the ALJ’s decision.

I had a case recently denied by an administrative law judge. The judge’s written decision went full-on Captain Queeg with the strawberries .  The decision discounted three separate treating and examining physician opinions in the record, and adopted the DDS non-examining physician opinion based solely on a review of the medical record. Given the medical evidence, the past relevant work, and the age of the claimant, it was a particularly unfortunate decision.

Don’t wait to get your initial thoughts on paper. Start that appeal right away, and outline the areas where the judge’s decision was unsupported. You can polish the language later, but get a draft going right away. Your appeal will be the better for it.

Sometimes a prior job is actually more than one job at the same time. You were both a carpenter and a work site supervisor.  Your were a front desk clerk at a hotel, but also cleaned rooms and sometimes carried guests’ luggage to their room. These are called composite jobs.

In every disability claim, the SSA must determine (at step 4 of the 5-step sequential evaluation process) whether you have the residual functional capacity to perform your past relevant work. This is where the composite job is relevant to a disability claim.

Social Security Ruling 82-61 states “composite jobs have significant elements of two or more occupations and, as such, have no counterpart in the DOT. Such situations will be evaluated according to the particular facts of each individual case.” Social Security must consider all the exertional and nonexertional requirements of a composite job.

There is some good case law on this issue from the Ninth Circuit:

Every occupation consists of a myriad of tasks, each involving different degrees of physical exertion. To classify an applicant’s “past relevant work” according to the least demanding function of the claimant’s past occupations is contrary to the letter and spirit of the Social Security Act. Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985).

See also Carmickle v. Commissioner, 533 F.3d 1155, 1166 (9th Cir. 2008).

This issue can make the difference between losing a case at step 4 or not.

Sometimes this comes up at a hearing, but the judges understand the issue, and usually it can be addressed with a brief discussion at the hearing (better yet: address it in your pre-hearing brief). However, I am seeing DDS get it wrong in Initial and Reconsideration determinations quite often.

I just signed up a new client who was denied at Reconsideration because she could perform her past work as generally performed in national economy. That is a red flag. Whenever you see that language in the denial letter or the Disability Determination Explanation (always request a copy of the DDE), you need to investigate the issue of composite work.

A series of recent posts here on the blog have taken a closer look at transferability of acquired job skills.

Transferability of skills is an issue when all four of the following are true:

1. Transferability is material to the determination;

2. past relevant work has been determined to be skilled or semiskilled;

3.  The individual’s residual functional capacity prevent the performance of past relevant work; and

  4. The claimant does not have a mental impairment that prevents him or her from doing skilled and semiskilled work.

 

Social Security regulates the fees paid to those repesesenting disability claimants before the SSA. A contingency fee of 25% is permitted, and charged by pretty much everyone who does this type of work.

For those using the fee agreement process that allows quicker payment of the fee, Social Security imposes a cap on the fee that will be paid. For the last 12 years or so, the fee cap has been $6,000. However, acting  Social Security Commissioner Dr. Kilolo Kijakazi announced yesterday at the NOSSCR conference that the fee cap would be raised to $7,200 effective November 30, 2022.

Disability claimants over the age of 55 who are unable to perform their past relevant work and are limited to Light exertional work (or less) will be found disabled at step 5 in the absence of readily transferable skills (and in the absence of recent education providing direct entry to skilled work), by operation of the Medical-Vocational Guidelines, or “the Grids.”  See Grid rule 202.06.

As the regulations explain, “the limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled.” See Section 202.00(c) of the Medical-Vocational Guidelines.

Conversely, “The presence of acquired skills that are readily transferable to a significant range of semi-skilled or skilled work within an individual’s residual functional capacity would ordinarily warrant a finding of not disabled.” See Section 202.00 (e) of the Medical-Vocational Guidelines, and Grid rule 202.07.

Of course, Social Security does not define how many jobs (to which acquired job skills would transfer) are needed to constitute a “significant range” of semi-skilled or skilled work. The 9th Circuit has held that 2 jobs are insufficient to satisfy the “significant range” range requirement. See Maxwell v. Saul, 971 F.3d 1128 (9th Cir. 2020). Are three jobs enough? Four? More? We don’t know for sure.

But you can be pretty sure that the vocational expert testifying at your hearing doesn’t know either. So be sure to ask if acquired job skills would transfer to a significant range of skilled or semi-skilled work, as the regulations require. The VE may not want to be put on the spot to identify 4-5 jobs that the skills would transfer to, and will simply say no.

By the way, outside of the 9th Circuit (where Maxwell must be followed), Social Security’s position is that 2 jobs would be enough to meet the requirement for a significant range of work.