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The Honorable Vickie Evans will be joining the Portland, Maine ODAR as a new administrative law judge. Prior to becoming a judge, Ms. Evans was a Senior Attorney Advisor at the Delaware hearing office. Prior to that, she represented claimants before the Social Security Administration in the Atlanta area for about 7 years. We welcome Judge Evans to Maine.

Judge Evans is expected to begin conducting hearings this Fall. She will replace Judge Kim Griswold, who will be transferring to the Social Security hearing office in Hartford, Connecticut. We wish Judge Griswold well.

Here is a selection of recent notable posts from the Social Security disability blogs.

If you are a Social Security disability lawyer, please join the conversation in the comments of my post below ("Medical Source Statements vs. Functional Capacity Evaluations") and tell me what you do to obtain opinions from your clients' treating physicians.

 

An excellent article by reporter John Leland, entitled Retiring Later is Hard Road for Laborers, appeared this week in the New York Times.

In the context of the current debate about raising the Social Security retirement age, Mr. Leland wrote about the difficulties faced by aging workers in labor-intensive jobs. He related the story of a worker in a tire factory:

At the Cooper Tire plant in Findlay, Ohio, Jack Hartley, who is 58, works a 12-hour shift assembling tires: pulling piles of rubber and lining over a drum, cutting the material with a hot knife, lifting the half-finished tire, which weighs 10 to 20 pounds, and throwing it onto a rack.

Mr. Hartley performs these steps nearly 30 times an hour, or 300 times in a shift. “The pain started about the time I was 50,” he said. “Dessert with lunch is ibuprofen. Your knees start going bad, your lower back, your elbows, your shoulders.”

He said he does not think he can last until age 66, when he will be eligible for full Social Security retirement benefits. At 62 or 65, he said, “that’s it.”

Mr. Leland's article also gave an account of an airline ramp serviceman:

This is not news to Jim McGuire, 62, a ramp serviceman for United Airlines, who started lifting bags into airplanes 43 years ago. He has had rotator cuff surgery and separated a shoulder on the job.

“From 50 to 60 was a drastic change,” he said. “The aches and pains, the feeling that your back could go at any second. My hips are worn out. In a seven-day week, I take Advil five nights for the pain.”

Mr. McGuire said that he did not have a planned retirement date, but that he hoped to make it to 66. Since United’s pension plan was taken over by the government, cutting his benefits in half, he says Social Security has become a much bigger part of his future plans.

These workers feel "stuck" working at their labor-intensive jobs until retirement age. Many older workers become unable to continue such jobs, and take Social Security early retirement benefits, incurring a 25% penalty.

However, if workers like these are unable to continue their employment, the better choice is to apply for Social Security disability benefits. Disability benefits are paid at the full retirement age amount; there is no 25% penalty.

Taking disability is not welfare. Mr. McGuire, for example, has paid into the Social Security system for over 40 years. Yet, many thousands of workers like him simply take early retirement, because they do not realize that disability benefits are available (in fact, you can apply for Social Security disability benefits and early retirement benefits at the same time).

The policymakers considering the issue of raising the Social Security retirement age should reflect seriously upon the plight of older laborers like these two men. If the retirement age is raised, then the Social Security disability program will be even more important for aging workers. The disability program should be strengthened (or at least not weakened) to protect these workers. That way, laborers near retirement age will have the option of applying for disability if they can no longer perform their past relevant work and qualify for disability benefits under Social Security's rules. Also, much more needs to be done to ensure that workers age 61-65 are aware of their options. 

I emailed John Leland about some of these concerns, and he graciously replied to me.

Related articles:     

Social Security Disability vs. Early Retirement

Social Security – Early Retirement Benefits or Disability Benefits?

I send a medical source statement to the claimant's doctor in pretty much every case, because it is the most powerful evidence available of the claimant's functional limitations. Social Security's rules put the opinions of treating physicians at the top of the hierarchy of medical evidence. See 20 CFR 404.1527(d) and Social Security Ruling 96-2p. A good medical source statement is often the difference between winning and losing a disability claim. I cannot overstate its importance.

Now, doctors are busy, and primary care doctors are very busy, and in general they do not like completing these forms. They are not paid for it, either. But lately I have noticed an uptick in doctors avoiding the task of completing the form by saying that it requires a functional capacity evaluation (FCE). 

Functional Capacity Evaluation

A functional capacity evaluation is performed by a physical therapist by actually physically testing the patient. FCEs have become a big business. The inherent flaw in the FCE process, however, is that physical testing for a day or two cannot reliably predict what the patient can do on a regular and continuing basis in the workplace. Drawing conclusions about residual functional capacity from an FCE is closer to voodoo than science. 

Social Security's medical source statement form does looks like it requires a FCE, because it has precise categories for lifting and carrying, standing and walking. So you can see how a misunderstanding could develop at the doctor's office about the nature of the form. But sometimes, the FCE issue is just a convenient excuse to avoid completing the form. 

An FCE can help your case, but not the way a medical source statement can. An FCE is not from your treating physician, so it is not entitled to the deference of 20 CFR 404.1527(d)(2). It may not be from a physician at all, so you now have a non-acceptable medical source issue. See 20 CFR 404.1513.

Most importantly, a functional capacity evaluation does not address the critical issue of what the claimant can do on a sustained basis. An assessment of what you can do on a given day has little to do with what you can do day after day or week after week. The FCE doesn't tell you that, and that's what an residual functional capacity must determine. See Social Security Ruling 96-8p.

Get a Medical Source Statement instead

What the medical source statement requires, as the name implies, is a doctor's opinion – a medically informed opinion about what the claimant can and can't do. Knowledge of the patient's medical condition and common sense are all that is required.

By the time someone from the doctor's office calls me to say that an FCE is required to complete the medical source statement, it is usually too late to persuade them otherwise. I deal with this situation now by involving the client. I tell the client that the doctor will not complete the form, and would they please take the blank form with them to their next doctor's visit. At the next visit, with the patient right there in front of the doctor, the form is usually completed. But if you are not careful, a hearing can be scheduled before the next doctor's appointment, and you can miss the opportunity for this type of patient intervention.

What is the solution?

  • This issue requires outreach to physicians. I mention it whenever I talk to a doctor, but I don't talk with doctors that frequently. I would like to address local meetings of physicians to spread the word. The issue is too important to just let the situation get worse.
  • I always thank the doctor when I get a form back. I think positive reinforcement helps.
  • I may start paying to have the form completed, and simply send a check for $50 to the doctor's office with the blank form. But this cost gets passed on to the client at the end of a successful case, and I am reticent to make this my standard practice.
  • I am considering abandoning the Social Security medical source statement form, SSA form HA-1151-BK. I mean let's face it: the form does look like it requires a functional capacity evaluation. I may create a different form, or request more narrative reports from doctors. Narrative reports take more of a doctor's time, and are correspondingly difficult to obtain, but at least there is no easy excuse to avoid giving an opinion.

I would welcome your suggestions. What do you do to obtain medical source statements? Please leave a comment.

At step 4 of Social Security's sequential evaluation, the SSA considers your ability to perform your past relevant work. This is a very important step in the process, because if the SSA determines that you retain the residual functional capacity to return to your past relevant work, your disability claim will be denied.

For those applying for disability benefits, it is important to fully describe the requirements of your past jobs in your work history report or adult disability report. Don't forget to specify the lifting, standing and other requirements of your prior work. Be sure to tell Social Security if your prior work included a composite job, with dual responsibilities.

Social Security will match your current abilities to the requirements of your past work. The SSA looks at both how each job was actually performed by you, and how those jobs are generally performed in the national economy. Social Security will simply compare your abilities with the requirements of each of the previous jobs. It doesn't matter if the past job doesn't exist anymore.

Remember that not all past work is past relevant work. However, even part-time work at SGA can be past relevant work.

Social Security classifies jobs according to skill level. You may have learned job skills at your previous work. If your acquired job skills can transfer to skilled or semi-skilled work that you are still able to do, it is problematic for your claim.

Eliminating your past relevant work is important for all claimants, but it is particularly important for Social Security disability claimants 50 to 54 years old, claimants 55 to 60 years old, and claimants 61 to 65 years old.

Every other Friday on this site you will find a selection of recent posts from the Social Security disability blogs. Also, here is a recent picture of baby Bridget.

 

The ability to lift and/or carry is one of the basic building blocks of a worker's Residual Functional Capacity (RFC). However, the focus is almost always on the lifting, and it shouldn't be.

I had a conversation recently with a client with leg problems due to neuropathy. I asked about lifting 20 pounds (required for light exertional work). The client replied "I can lift that, but I can't do anything once I've got it." He could lift but he could not carry.

Several medical conditions (including degenerative joint disease of the hip, knee, or ankle, peripheral neuropathy in the feet, or peripheral vascular disease) can allow a claimant to lift but not carry 20 pounds or more on a sustained basis. A claimant must have the ability to both lift and carry 20 pounds for the light exertional level.

This issue is particularly important for those claimants age 50 or over, since (once past relevant work is precluded at step 4) they must have an RFC at the unskilled sedentary exertional level to prevail under the medical vocational guidelines at step 5. 

The Saco, Maine Social Security field office is moving from the 5th Floor of the Saco "Island Point" building at 110 Main Street to newly renovated space on the 4th Floor of the same building. The office will be closed Thursday August 26 and Friday August 27 for the move. The office will reopen on Monday.

The new Social Security space is just a few steps down the hall from my law office. I am happy to have the Social Security staff as new neighbors.

Social Security considers the age of the claimant at step 5 of the sequential evaluation. Age plays no role in steps 1 through 4.

Age is a vocational factor which dictates where you fall in the Medical-Vocational Guidelines, which are used to determine disability at step 5 for claimant’s who have physical impairments. The Guidelines may achieve different results depending on whether the claimant is under 50, age 50 to 54, or age 55 or older.

So what does one do when the claimant is on the cusp of a higher age category at the hearing? Or what does one do when the claimant crosses to the higher age category while the claim is pending?

These are call borderline age situations, and the SSA has a regulation on point. 20 CFR 404.1563(b) states:

We will not apply the age categories mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case.

POMS section DI 25015.006 describes factors to consider in borderline age situations.

Every other Friday I link to recent posts of interest from the Social Security disability blogs. An archive of previous disability blog roundups is available in the sidebar.