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Every other Friday I post links to notable posts from the Social Security disability blogs: 

I have been working on a federal court brief, which will be filed today. Here in Maine, we have local rule 16.3, which streamlines Social Security appeals. These cases are routed to the magistrate judge in Portland, Hon. John Rich III, who decides the appeal based upon an Itemized Statement of Errors filed by the Plaintiff and the oral argument of both parties. Well, technically the magistrate judge issues a recommended decision for the district court judge, but that recommended decision is routinely adopted by the distict court judge, so as a practical matter, the magistrate judge decides the appeal. 

All the decisions of Judge Rich are available on-line. It has been a while since I did a federal court appeal, so I reviewed his recent Social Security cases, to make sure I wasn't arguing an issue that had been decided the other way, and to have current citations for the issues I briefed. And, of course, to see if there were some helpful cases for my issues on appeal.

Below are a few snippets from the District of Maine cases that were relevant to my appeal. Those of you who do Appeals Council briefs or federal court work will recognize familiar, recurring issues:

Evaluating treating source opinions

A medical opinion by a treating source is given "controlling weight" when it is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record. See 20 C.F.R. § 404.1527(d)(2); Social Security Ruling 96-2p, reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp. 2010) ("SSR 96-2p"), at 111. When such an opinion is not given controlling weight, it is nonetheless evaluated pursuant to the factors enumerated in section 404.1527(d)(2)-(6). See id. § 404.1527(d)(2). The fact that a medical opinion is not entitled to controlling weight does not mean that it should be rejected. See SSR 96-2p at 114. "Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927." Id. The commissioner must "always give good reasons in [his] notice of determination or decision for the weight [he] give[s] your treating source’s opinion." 20 C.F.R. § 404.1527(d)(2).

RFC determinations

While administrative law judges are not precluded from “rendering common-sense judgments about functional capacity based on medical findings,” they are “not qualified to assess residual functional capacity based on a bare medical record[,]” Gordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990). See also, e.g., Eshelman v. Astrue, No. 06-107-B-W, 2007 WL 2021909, at *3 (D. Me. July 11, 2007) (rec. dec. aff’d July 31, 2007) (“While the First Circuit does permit an administrative law judge to pick and choose among physicians’ findings and opinions, it does not permit the crafting of an RFC based on the raw medical evidence of record unless common-sense judgments about functional capacity can be made.”) (citations, internal quotation marks, and footnote omitted). Kaylor v. Astrue, No. 2:10-cv-33-GZS (D. Me. December 30, 2010)(rec. dec. aff'd February 7, 2011) 

The administrative law judge, as a layperson, is not competent to assess the plaintiff’s physical RFC on the basis of the raw medical evidence of record. See, e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) ("The ALJ’s findings of fact are conclusive when supported by substantial evidence, but are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.")

Step 2 and Harmful Error

Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence "establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work even if the individual’s age, education, or work experience were specifically considered." Id. (quoting Social Security Ruling 85-28). Guber v. Astrue, Civil No. 1:10-cv-172-JAW (D. Me March 30, 2011).

"[A]n error at Step 2 is uniformly considered harmless, and thus not to require remand, unless the plaintiff can demonstrate how the error would necessarily change the outcome of the plaintiff's claim." Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010).

Simple instructions

A limitation to simple instructions and tasks correlates to jobs with a GED R level 1 or 2. Pepin v. Astrue, Civil No.09-464-P-S (D. Me. August 24, 2010)(rec. dec. aff'd September 16, 2010).

7/7/11 update: After reviewing the Statement of Errors and the administrative record, Assistant Regional Counsel determined that a remand is appropriate. Excellent!

Only recently did we learn the rates at which Social Security Administrative Law Judges grant and deny the claims they hear. Of course, we disability lawyers would keep track of our own claims, and talked with other disability lawyers about their experience with local judges. But the big picture was never clear.

However, after a groundbreaking investigative article and Freedom of Information Act request by The Oregonian newspaper in December of 2008, the statistics for each and every ALJ became readily available. Today, the current stats for each ALJ can be found right on the SSA website.

Once you look at the allowance/denial rates for the various ALJs, it is striking how different they can be. The national average, reflected in 2010 statistics, is an allowance rate of 62% of claims that reach the hearing level. That average is a little higher here in Maine and New Hampshire.

Recently a federal lawsuit was filed against the SSA alleging anti-claimant bias from five judges in the Queens, NY hearing office. These judges, collectively, are allowing just 36% of the claims they decide. The lawsuit also alleges a pattern of very poor decision writing and a disregard for Social Security's own regulations governing how evidence, particularly medical evidence, is to be considered. All this has led to some bad feelings. Take a look at this post calling out Chief Judge David Nisnewitz as a bully.

These judges are being routinely reversed upon appeal to federal court. This is not surprising. If a judge is issuing unfavorable decisions in two out of three cases, there is just not time enough in the day to write defensible, legally sufficient decisions. More importantly, that judge is very likely to be overlooking medical evidence favorable to the claimant. It's hard to fight the law of averages. If you are just granting 36% of cases, those unfavorable decisions are going to be wrong about half the time.

Every two weeks, I publish a collection of links to recent notable posts from the Social Security disability blogs:

Photo: Bridget climbing the stairs

We receive 75-day advance notice for administrative law judge hearings in Maine and New Hampshire. The 75-day notice is a remnant of the DSI (Disability Service Improvement) experiment that the SSA conducted in the Boston region. So the New England states enjoy 75-day notice when a hearing is scheduled, as opposed to the 20-day advance notice given in the rest of the country. Let me tell you, it is nice.

75-day notice is, in my opinion, the greatest improvement ever made to the disability hearing process. I think everyone involved would agree. The 75-day notice is paired with a "5-day rule," which states that all evidence to be considered by the ALJ needs to be submitted 5 days ahead of the hearing. See 20 CFR 405.331(a). 

Our experience with the 75-day notice and 5-day rule has been excellent. Cases are much better prepared for hearing. There is no last minute scramble to update the medical record when a claim is scheduled. There is time to write a hearing brief after all the evidence has been submitted.

I remember the old days (it's been 5 years) when we just got 20 days notice. It was not unusual to go to the hearing with a packet of new medical records, often including recent medical source statements for the judge to review. Good luck conducting a meaningful hearing when the most important evidence for the claim was just handed to you! But if the evidence was submitted before the judge writes a decision, it must be considered. This is chaos for an orderly decision process.

Short of a regulation change, 75-day notice should be at least an aspirational goal of every hearing office. Here in New England it is still required. Elsewhere however, hearing office would do well to stretch out their advance notice to 75 days.

 

Atlanta disability attorney and fellow Tulane Law School graduate Jonathan Ginsberg recently posted a video entitled Denial Notices from Social Security. The short video explains why Social Security's form denial notices have no impact on whether or not your case will ultimately be approved.

Jonathan's video got me thinking about those form letters that Social Security sends out when it denies a claim for disability benefits. Often my first contact with a prospective client is after this notice has been received in the mail, and that person is still reacting to the letter. I have written about this topic before: see Social Security Denial Explanations.

I totally agree with the points Jonathan makes in his video. Be aware that it is a form letter, and it is not meant to be insulting. At your hearing, the admininstrative law judge will make a new decision on your disability claim, regardless of the wording of that denial letter.

Furthermore, the letter usually provides some helpful information. It provides a point of reference about how Social Security views your claim. The letter lists the medical sources that were considered in the decision, so you know that you need to obtain any missing records that were not reviewed. Often the denial notice will state that you could return to a specific past job, or do other work. This tells you if your claim was denied at step 4 or step 5 of the sequential evaluation. All this information will give a disability lawyer a starting place to evaluate your claim, and make early decisions about what evidence will be necessary to get a favorable result at hearing.

If you get a denial letter, do not be upset by its language, and try not to get discouraged about the fact that your claim has been denied. Make sure to appeal your denial right away, and get some legal help with your disability claim.

A medical source statement is an opinion from your doctor regarding the nature and severity of your limitations due to your medically-determinable impairments. A medical source statement is often simply a form that is completed and signed by your doctor setting forth the doctor's assessment of your functional limitations. The name derives from a section of 20 CFR 404.1527(d)(2), the regulation describing medical opinion evidence. See also 20 CFR 404.1513(b)(6).

The SSA must give controlling weight to a your treating doctor's opinion, if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record." 20 CFR 404.1527(d)(2). This deference due to a medical source statement makes it very important for a disability claim.

Quite simply, a medical source statement may be the most powerful evidence that a lawyer can develop for a Social Security disability claim.

This issue is so important for every disability claim that I have added a medical source statement page to this site, and added a link to that page on the sidebar, under "Important Topics For Claimants." Available on that page are pdf copies of Social Security's medical source statement (physical) and medical source statement (mental). You can download the form you want, print it, and take it to your next medical appointment for your provider to complete.

Every other Friday, I publish a collection of links to notable posts from the blogs on the topic of Social Security disability.

Today is the 3-year anniversary of the first post on this blog. Over 400 posts have followed that first one. There has been much to talk about over the years. Social Security disability law is surprisingly complicated, and behind every claim is a different personal story.

This blog has become part of my life as a disability lawyer, and I am a better disability lawyer today because of this blog. This site has helped to expand my law practice, and led to an awesome presentation at the Chicago NOSSCR conference last Fall. Social Security law is federal law, and this blog is read in all fifty states. As a result, I have been able to connect with disability lawyers around the country.

The blog has also been a way to help clients and potential clients in Maine and New Hampshire learn about the Social Security disability process, to see how I approach a claim, and how I run my law practice. For everyone else, I sincerely hope the site continues to be a useful resource for those searching for insight regarding their disability claims.

Thank you for reading.

Photo: Bridget having cake at her first birthday party

A medical source statement is an opinion from your doctor regarding the nature and severity of your limitations due to your medically-determinable impairments. A medical source statement is often simply a form that is completed and signed by your doctor setting forth the doctor’s opinion regarding your functional limitations.

The SSA must give controlling weight to a your treating doctor’s opinion, if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record.” See 20 CFR 404.1527(d)(2). This deference due to a medical source statement makes it very important for a claim.

Here are the forms I use. The first form is used to describe physical limitations. The second form is used to describe mental limitations.