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Effective today, the SSA has revised the 2.00 listings regarding hearing loss. The changes are only to the listings for hearing loss and their accompanying introductory text.

Listing 2.08 "Hearing Impairments" has been removed, and new listings 2.10 and 2.11 have been added:

The revisions are discussed at length in the final rule published on the Federal Register on June 2, 2010 (link goes to pdf version). According to the final rule, the revisions are intended "to update the medical criteria, provide more information about how we evaluate hearing loss, and reflect our adjudicative experience."

The final rule also notes that proposed rules for disturbances of labyrinthine-vestibular function (listing 2.07) and loss of speech (listing 2.09) are forthcoming, and will be separately published.

{update: I should note that the corresponding childhood listings have also been amended}

I have a client with severe Meniere’s disease awaiting a hearing. Meniere’s disease is a disorder of the inner ear resulting in recurrent vertigo, loss of balance, ringing in the ears, and deafness. The vertigo alone is disabling, in my opinion.

Social Security adult listing 2.07 explicitly covers Meniere’s disease. The listing states:

2.07  Disturbance of labyrinthine‑vestibular function (including Meniere’s disease), characterized by a history of frequent attacks of balance disturbance, tinnitus, and progressive loss of hearing. With both A and B:

A. Disturbed function of vestibular labyrinth demonstrated by caloric or other vestibular tests; and

B. Hearing loss established by audiometry.

Anyone suffering from Meniere’s has probably seen an ENT specialist, and had the appropriate audiometric testing. This should not be a difficult listing to meet for a claimant suffering from severe Meniere’s who has had the benefit of good medical treatment.

An "on the record" decision refers to Social Security disability and SSI claims pending at the hearing level at the Office of Disability Adjudication and Review (ODAR) that are granted on the record prior to a hearing. An on the record decision can only be a fully favorable decision.

Usually, an on the record (OTR) review is conducted after an on the record request is made. A claim should be clear cut for a good chance at an on the record decision. A strong case would have not just good medical evidence, but also clear evidence of the claimant's functional limitations. If it is clear from the record that the five-step sequential evaluation would yield a finding of "disabled," then an OTR request is a good idea. 

One group of claimants that are good candidates for OTR requests are those who are 55 years old or older, are clearly unable to perform their past relevant work, and are limited to unskilled work. Social Security's Medical-Vocational Guidelines direct a finding of "disabled" for such claimants, so an OTR decision is a strong possibility.

Sometimes a case is granted on the record without a formal request. I see this when I have written a hearing memorandum for an approaching hearing. The judge may read the memorandum, review that disability claim file, and then issue an on the record decision without a hearing. Busy ALJs are increasingly recognizing that an OTR decision in an appropriate case saves a great deal of time.

Every other Friday, I publish a selection of recent posts from the Social Security disability blogs:

Here is a hearing brief from a recent case, with changes made to protect the privacy of the claimant. This brief led to a fully favorable on the record decision.

 

U.S. Administrative Law Judge
Office of Disability Adjudication and Review
Social Security Administration
1750 Elm Street, suite 303
Manchester, NH 03104

Also filed by Electronic Records Express

Re: Jane Smith
SSN: 123-45-6789

Dear Judge,

This is a pre-hearing memorandum for Jane Smith, who has a hearing scheduled for December 2, 2011 at 9:00 AM in Manchester. The disability claim file contains overwhelming evidence of both physical and mental disability, and her two most important treating sources have completed detailed medical source statements that would preclude work. A hearing is not necessary. Further, the claimant has significant anxiety about the December 2nd hearing itself. If appropriate, I ask you to grant this claim on the record.

Introduction

Jane Smith, a former nurse, is 54 years old. This Title II claim was filed on 2/20/2009, and has an alleged onset date of 4/02/2008. The DLI is in the future: 12/31/2013.

Jane has been diagnosed with Lyme disease and treated extensively for it. She has the physical impairments of arthritis/degenerative joint disease, chronic knee pain, asthma, sleep apnea, and fatigue. She has the mental impairments of depression and anxiety. Jane has extensive cognitive difficulties, with reduced executive functioning.

The record contains a compelling 2 ¼ page statement from the claimant’s husband John, submitted by electronic records express on 11/22/2011.  Mr. Smith’s statement is “other non-medical evidence” under 20 C.F.R. 404.1513(d)(4). The statement offers an excellent short summary of the changes in Jane’s life, and it offers insight into her current level of functioning, particularly her cognitive functioning.

Medical Evidence

You have the benefit of an extensive medical record, with several neuropsychological consults.

Exhibit 6F – An extensive neuropsychological evaluation with testing was completed over two days by Catherine Monaco, a clinical neuropsychologist and license clinical psychologist (exhibit 6F). The testing showed notable weakness within the areas of processing speed and complex visual organization/integration. Dr. Monaco concluded “a number of factors are likely contributing to her current difficulties” including depression and anxiety, perhaps sleep apnea or menopause, and “the cognitive effects of Lyme disease” (exhibit 6F, page 7, Conclusion section).

Exhibit 8F – The treatment notes of John Rescigno, M.D from Derry Neurological Associates are at exhibit 8F. His impression on 8/15/2008 was “this is a woman with cognitive impairment (8F, page 3). His progress notes cite memory and concentration problems, and he identified “multiple potential causes for difficulties focusing.” (8F, page 1, last paragraph). His notes also discuss “OCD like” hoarding behavior – Jane will not throw away junk mail for fear that it may have value. She started not letting go of the newer type of quarters, thinking they have a greater value than just 25 cents (see exhibit 8F, page 2, top two paragraphs).

Exhibit 9F – There is a neurological consult by Maureen Hughes, M.D., a Board certified neurologist, at Dartmouth-Hitchcock. Her report also identified cognitive issues but Dr. Hughes could not identify a single cause among the multiple potential causes of depression, anxiety, sleep apnea or Lyme disease. As a way to narrow down potential causes for Jane’s cognitive impairment, Dr. Hughes suggested counseling for the anxiety and depression, followed by retesting (exhibit 9F).

Exhibit 7F – The treatment records of primary care provider Dennis Rork, M.D. at Londonderry Family Practice are at exhibit 7F. Updated records were filed by electronic records express on 11/9/2010. Dr. Rork completed Social Security form HA-1151-BK, the Medical Source Statement of Ability to do Work-Related Activities (Physical) and HA-1152-U3, the Medical Source Statement of Ability to do Work-Related Activities (Mental). Both are dated 11/10/2011 and were filed by electronic records express on 11/17/2011.

For physical limitations, Dr. Rork assessed limitations of lifting and/or carrying up to 10 pounds occasionally, limits sitting to 2 hours a day and standing and walking to 1 hour each, for a total of 4 hours in an 8-hour work day. Dr. Rork made a handwritten note that “Pt needs to rest (recline).”  Four hours of an 8-hour day is a less than sedentary physical RFC (see Social Security Ruling 96-8p).

For mental limitations, Dr. Rork assessed “marked” impairments in several areas, including a marked impairment in the ability to understand and remember simple instructions, and a marked impairment in the ability to make judgments on simple work-related decisions. (see page 1 of Medical Source Statement of Ability to do Work-Related Activities (Mental), dated 11/10/2011). Dr. Rork wrote extensive comments on his medical source statement, and page 3 just below his signature, he wrote: I am Jane Smith’s PCP. I know her well and see her frequently. I have cared for her for >5 years and observed her decline physically and mentally. She is totally disabled in my opinion. (MSS Mental dated 11/10/2011)

The record also contains a medical source statement from psychiatric nurse practitioner Mary Rose dated 10/29/11. The supporting records from the Center of Life Management have been submitted by electronic records express. Ms. Rose’s assessment also contains marked impairments in the ability to understand and remember simple instructions, and a marked impairment in the ability to make judgments on simple work-related decisions.           

While a nurse practitioner is not an “acceptable medical source” under 20 CFR 404.1513, evidence from “other sources” must be considered. See 20 CFR 404.1513(d). While information from these other sources cannot establish the existence of a medically determinable impairment, in this case the MDI is established by several others, including Dr. Jacobs (15F), psychologist Stephanie Lynch (12F), and Dr. Rork (7F), who are acceptable medical sources. Social Security Ruling 06-03p states that information from “other sources” provides insight into the “severity of the claimant’s impairments and how they affect the claimant’s ability to function.” Ruling 06-03p states that these opinions should be evaluated using the “Factors for Weighing Opinion Evidence” set forth in 20 CFR 404.1527(d)(2).

In this case, the “Factors for Weighing Opinion Evidence” weigh in favor giving Ms. Rose’s opinion great weight. She has been prescribing Jane’s medications, and closely tracks her progress; her opinion is well supported by her comments on the medical source statement and also by her progress notes; the opinion is consistent with the record as a whole, including the opinions of Dr. Jacobs (15F) and Dr. Rork; and the opinion comes from a certified psychiatric specialist, albeit a nurse practitioner.

Exhibit 12F – The Consultative Exam Report from Stephanie Lynch concluded that Jane was “not able to maintain attendance and a schedule or to cope with work pressures” (exhibit 12F, page 6).

Exhibit 15F – The Mental Impairment Questionnaire completed by treating psychologist Edward Jacobs, Ph.D. at the behest of DDS provides the diagnostic expression of “Major Depressive Disorder, Severe, Recurrent (15F, page 2). He states that the claimant’s mood is “extremely depressed, tearful” (15F, page 1). For Daily Activities, Dr. Jacobs wrote “Poor ability to function independently because of impairments in attention + memory + motivation” (15F, page 2). For task performance, he stated “Poor initiative, poor follow through (15F, page 2). For Stress Reaction, he wrote “Extremely impaired due to depression, hopelessness + helplessness”

The DDS Review

This claim should have been granted at the initial level. As stated above, the CE arranged by Social Security states that Jane would not be able to maintain attendance or cope with work pressures. Dr. Jacobs assessed the claimant as “extremely impaired.” The DDS reviewing psychologist, for whatever reason, did not fully credit these assessments. The DDS mental RFC limits Jane to “short and simple instructions that do not require a high rate of pace” and states that Jane must have “an environment where supervisory criticism is not overly critical of her performance” (14F, page 3).

The DDS physical RFC sets forth an assessment consistent with light exertional work, with occasional postural limitations.

Sequential Evaluation

At step 1, there has been no work since the onset date of 4/02/2008.

At step 2, Jane has the severe physical impairments of Lyme disease, arthritis, sleep apnea, asthma and fatigue, degenerative joint disease with chronic knee pain (status post knee surgery, both knees). She has the severe mental impairments of depression, and anxiety. As a result of either neurological effects of Lyme disease or from her depression or anxiety, Jane has developed severe cognitive problems.

At step 3, listings 12.04 and 12.06 are met. The PRT Form at the DDS level assessed the “B” criteria as follows: a “moderate” restriction of activities of daily living, “moderate” difficulties in maintaining social functioning, and “moderate” difficulties in maintaining concentration, persistence, or pace. However, both Dr. Rork and Psychiatric Nurse Practitioner Mary Rose assessed “marked” limitations in these areas of functioning. These treating opinions support a finding of a “marked” restriction of activities of daily living, and “marked” difficulties in maintaining concentration, persistence, or pace. The “B” criteria are met, under these two treating source assessments.

Jane may also meet listing 14.09D due to her Lyme disease. She has frequent fatigue, and she certainly has a marked limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace (see 14.09D.3.), as discussed in the previous paragraph.

At step 4, Jane cannot return to her past relevant work. The medical source statement of the primary care doctor (Dr. Rork) and the psychiatric nurse practitioner (Mary Rose) would preclude Jane’s past work. Jane’s poor cognitive functioning alone would preclude her past work. The limitation in the DDS RFC to “short and simple instructions” rules out Jane’s past work, and DDS found that Jane could not return to her past work (see exhibit 5E).

At step 5, other work is also precluded by Jane’s cognitive impairments. She cannot even make simple decisions. For example, the inability to make the decision to throw away a piece of junk mail because it might be important (please see statement of spouse, John Smith, page 2) reflects an inability to make simple decisions. Social Security Ruling 96-9p states:

Mental limitations or restrictions: A substantial loss of ability to meet any one of several basic work-related activities on a sustained basis (i.e., 8 hours a day, 5 days a week, or an equivalent work schedule), will substantially erode the unskilled sedentary occupational base and would justify a finding of disability. These mental activities are generally required by competitive, remunerative, unskilled work:

  • Understanding, remembering, and carrying out simple instructions.
  • Making judgments that are commensurate with the functions of unskilled work–i.e., simple work- related decisions.
  • Responding appropriately to supervision, co- workers and usual work situations.
  • Dealing with changes in a routine work setting.

Jane has a substantial loss of ability in all four of these areas. The mental medical source statements from Dr. Rork and psychiatric nurse practitioner Mary Rose assessed marked limitations in three of the four above activities.

Furthermore, based upon the physical functional limitations assessed by Dr. Rork, Jane is at the sedentary or less than sedentary exertional level. She is 54 years old, with a date of birth of 10/6/1956. At sedentary, medical-vocational guideline 201.14 directs a finding of disabled.

Conclusion

 Jane Smith has been unable to sustain employment due to her cognitive and other impairments since her alleged onset date. She also meets listings 12.04, 12.06 and perhaps 14.09. She cannot return to past work based on even the DDS RFC, and would grid favorably under Rule 201.14 at step 5. For all these reasons, fully favorable decision is appropriate.

As discussed in the opening paragraph of this letter, the claimant has significant anxiety about the December 2nd hearing. If appropriate, I ask you to grant this claim on the record.

Sincerely,

 

Gordon P. Gates

1.  Be a Professional

Do the best job possible for your client. Just getting the medical records, a medical source statement, and attending the hearing with the client is not enough. Your opening statement to the judge may be forgotten by the time the next hearing starts.

A Social Security disability claim may have 30 thousand dollars or more of back benefits. The future benefits may be hundreds of thousands of dollars. Why wouldn’t you write a hearing memorandum?

2.  Be More Prepared for the Hearing

Writing a good pre-prehearing memorandum makes you better prepared for the hearing. It forces you to go through the entire record and put everything in context. Furthermore, you can refer to your brief at the hearing. Need the exhibit and page number for that 2nd MRI when the judge asks about it? It’s in the brief. Having your reopening request in the brief ensures that you do not forget to ask for reopening at the hearing.

3.  Test Drive Your “Theory of the Case”

Every hearing memorandum should explain how the evidence and law affect each step of the 5-step sequential evaluation process. Writing the hearing brief will help you to evaluate your theory of the case. If you can’t get past step 4 in your memorandum, you can’t expect a judge to reach a different result.

4.  The Judge Wants a Memorandum

A hearing brief can be very helpful to the judge. That’s the point, after all. Since the memorandum is part of the disability claim file, it is available to the judge before, during and after the hearing.

A concise pre-hearing memorandum is on the list of best practices for claimants’ representatives published on the SSA’s website.

5.  The Claim has a Glitch

Sometimes a claim has a glitch. Maybe there was work after onset that is close to SGA, or an unsuccessful work attempt. Maybe there is a remote date last insured. Maybe there is a DAA issue. Perhaps a particular listing, regulation or Ruling should be reviewed prior to the hearing. All these issues can be addressed in your prehearing brief. If there is something quirky about your claim, deal with the issue in your memorandum.

6.  Have the Judge “On the Same Page”

When a claim is unexpectedly denied, it sometimes seems that the judge had a completely different view of the claim than you did. A hearing memorandum reduces the risk of these unexpected denials, by clearly setting forth your assessment of the medical evidence and the legal reasoning supporting the claim. And since the hearing memorandum stays in the record, the judge can refer back to it long after your opening statement at the hearing has been forgotten.

7.  Differentiate Your Claim

ALJs hear a lot of claims – hundreds every year. A hearing memorandum provides an opportunity to differentiate your claim. There is something unique about your claimant’s story. Maybe there is an outstanding prior work record, or the claimant heroically tried to go back to work after onset, or the claimant’s injury occurred during military service. Be sure to tell the judge about it in your hearing memorandum.

8.  Simplify Your Claim

Some claims are complicated, and have medicals from numerous sources. It is not always clear from the record what is going on with your claimant. Take the opportunity to simplify your case, so that the ALJ can get a handle on it.

9. Your Client Deserves It

Would you ever tell your client that his claim is not important enough for you to spend a few hours writing a pre-hearing memorandum? Your client is relying on you to do everything possible to achieve an award of disability benefits. You know how important those benefits are to your client.

10. Win More Claims

This is the reason that initially persuaded me to invest more time writing hearing briefs. I learned that the judges were really reading them. And I won more cases. You will win more cases, and you will receive more on the record decisions and bench decisions, if you write a good hearing brief.

In a recent post entitled Treatment Records, New York disability attorney Jeffrey Delott stated:

Treatment notes basically serve as a way to remind the physician of things she or he may need to remember at a follow up visit. Many relevant physical exam findings are not included either because, for example, they may have been previously reported and would be redundant, are obvious such as walking with a cane, or are implied, such as trigger points for fibromyalgia. Claims adjudicators frequently try to deny a claim by relying on treatment notes’ omissions as evidence that a person lacks “objective evidence” to support a claim. Therefore, it needs to be pointed out that treatment notes do not serve the same purpose as a narrative or other disability report, which is why they may appear different.

Mr. Delott is right. A doctor’s progress notes are maintained to keep track of the patient’s medical care. They are not created for the purpose of establishing disability. That is why a doctor’s progress notes alone are often not sufficient in a Social Security disability claim. An opinion from the doctor is often required. And the doctor’s opinion may assess limitations that are not noted in the patient’s treatment records. That is not unusual, because the treatment records have a different purpose than a doctor’s opinion letter or medical source statement.

Be sure to tell your doctor about your functional limitations, and hopefully those limitations will find their way into the doctor’s progress notes. But you should understand that your medical records alone may be insufficient to establish the functional limitations that Social Security uses to assess your claim.

I have written before about Social Security early retirement benefits versus disability, but the issue is worth revisiting. If you are approaching age 62, and are not working, please read this article.

Many people who are approaching the early retirement age of 62 are unable to continue their employment due to a physical or mental condition. Typically, they just take the early retirement, and never consider the possibility of Social Security disability. 

However, disability benefits are preferable to early retirement benefits. Disability benefits are paid at the higher “full retirement age” amount, rather than the “early retirement” amount. For those retiring by the year 2016, there is a 25% difference between early retirement benefits and full retirement age benefits.

As pointed out by Delaware disability attorney Steven Butler, you can pursue Social Security early retirement benefits and disability benefits at the same time. Social Security allows you to take the early retirement benefit, and then undo that choice if the disability claim is granted. A real-life example may help:

Real-life Example

My client had the same job for 30 years, and stopped work in July of 2008 due to the combined effects of several medical conditions. He just turned 62. If he takes early retirement, he would receive $1,165 per month. If he gets Social Security disability, he would receive $1,554 per month (the same amount he would receive if he retired at full retirement age). 

So he applied for both disability and early retirement. The early retirement claim was granted immediately, and the client is receiving an early retirement check while the disability claim is pending. 

When the disability claim is granted, the client will start to receive $1,554 per month in disability benefits instead of $1,165 for early retirement. He also will receive retroactive benefits of $1,554 a month for the 12 months prior to his filing date, since he was disabled during that time. He also will receive the difference between disability benefits and retirement benefits (in this case, $389 per month) for the months that the disability claim is pending.

11/12/10 update: this claim was granted on the initial application.

Applying for disability and early retirement at the same time solves one of the biggest hardships for those claiming Social Security disability benefits, which is surviving financially while the disability claim is pending.

Everyone’s situation is different. Social Security benefits vary, depending upon how much you have paid into the system over the years. Check out the Social Security Retirement Planner. Then consider getting some professional, personalized retirement advice. 

If you can no longer do the work you used to do, and you are not working now, consider applying for disability. Please consult a Social Security disability lawyer for your initial disability application, to ensure you get the benefit of Social Security’s rules for those over 55 years old.

If you are approaching age 62 (or have reached age 62), and can no longer perform your job, please read this short article.

Many people who are approaching the early retirement age of 62 are unable to continue their employment due to a physical or mental condition. Typically, they just take the early retirement, and never consider the possibility of Social Security disability. 

However, disability benefits are preferable to early retirement benefits. Disability benefits are paid at the higher “full retirement age” amount, rather than the “early retirement” amount. For those retiring by the year 2016, there is a 25% difference between early retirement benefits and full retirement age benefits.

You have the option of pursuing Social Security early retirement benefits and disability benefits at the same time. Social Security allows you to take the early retirement benefit, and then undo that choice if the disability claim is granted. A real-life example may help:

Real-life Example

My client had the same job for 30 years, and stopped work in July of 2008 due to the combined effects of several medical conditions. He just turned 62. If he takes early retirement, he would receive $1,165 per month. If he gets Social Security disability, he would receive $1,554 per month (the same amount he would receive if he retired at full retirement age). 

So he applied for both disability and early retirement. The early retirement claim was granted immediately, and the client is receiving an early retirement check while the disability claim is pending. 

When the disability claim is granted, the client will start to receive $1,554 per month in disability benefits instead of $1,165 for early retirement. He also will receive retroactive benefits of $1,554 a month for the 12 months prior to his filing date, since he was disabled during that time. He also will receive the difference between disability benefits and retirement benefits (in this case, $389 per month) for the months that the disability claim is pending.

Applying for disability and early retirement at the same time solves one of the biggest hardships for those claiming Social Security disability benefits, which is surviving financially while the disability claim is pending.

It is worth noting that, if you apply for early retirement and for disabiity, and your disability claim is eventualy denied, you are stuck with your decision to accept early retirement benefits. So do not take lightly the decision to apply for early retirement benefits.

Everyone’s situation is different. Social Security benefits vary, depending upon how much you have paid into the system over the years. Check out the Social Security Retirement Planner. Then consider getting some professional, personalized retirement advice. 

If you can no longer do the work you used to do, and you are not working now, consider applying for disability. Please consult a Social Security disability lawyer for your initial disability application, to ensure you get the benefit of Social Security’s rules for those over 55 years old.

Contact Gordon Gates or request a free claim evaluation.