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I usually stick to practical advice, here at the Social Security Disability Lawyer blog. However, I read an interesting post, published recently by Charles Hall, Esq. on his blog Social Security News, stating that the issue of substantial gainful activity (SGA) has become just too complicated. Mr. Hall says:

Basically, if one is engaging in SGA, one cannot be considered disabled, but SGA is a term of art. Work may not be SGA if low earnings, unsuccessful work attempts, made work, subsidized employment, impairment related work expenses, trial work periods, etc. are taken into consideration. And don’t get me started on self-employment as SGA or the effect of blindness on SGA.

There has been a consensus for some years that the whole concept of SGA needs a fresh look. One of the more common themes is that SGA should be a ramp instead of a cliff. …

One suggestion: The biggest problem now is that SGA is just too complicated. Claimants have no idea how it works. Even many Social Security employees who should understand how SGA works, don’t.

SGA is certainly a cliff. If you are over the monthly SGA amount by even $1, you have problems with your claim.

I also agree with the assessment that SGA is too complicated. There are some very important exceptions and adjustments to the $980 per month SGA amount, including the unsuccessful work attempt. A thorough knowledge of these complicated SGA rules is critical, because SGA exceptions can make the difference between winning and losing a claim (the cliff).

This is an area where an attorney who specializes in Social Security disability claims can really help. Now that’s practical advice.

Social Security Adult Listing 1.04A is often met for claimants with severe back pain, when there is an MRI or CT scan showing impingement of the nerve root or spinal cord. The practical difficulty with the  listing is that the other findings necessary to meet the listing, such as a positive straight leg raising test or muscle weakness, are not necessarily documented in the medical record.

It is very frustrating to have the telltale MRI in hand but not meet the listing due to the lack of documentation of the other criteria of the listing. Further, a treating  doctor's opinion that the listing is met is routinely disregarded at DDS, since the finding of a listing being met is reserved to the Commissioner. What you need is findings that all the components of the listing are met, somewhere in the medical records where they can be found.

So I have developed a Listing 1.04A_worksheet. The worksheet contains all the components of the listing. I give the worksheet to the patient to take to the next doctor visit. The doctor completes the worksheet right then, and (hopefully) also enters the requisite findings into the progress notes. When I submit the worksheet and the progress notes and the MRI to Social Securitiy, the listing should be met.

I'll let you know how it works.

This reader question regarding Social Security disability arrived by email today:

I am in the process of gathering info so I can decide if I should apply for disability.  It appears that the first criteria to meet is to not be working.  I am working and it is very, very difficult.  Will I need to give up my job before beginning this process in order to be eligible?

My answer:

Pretty much, yes. If you are working and earning more than $980 per month, then you are not disabled under Social Security's rules. There are a few exceptions to this, but in general if you are working and earning more than the level of substantial gainful activity ($980/month in 2009), then you are not disabled. Period. 

That determination is step 1 of Social Security's sequential evaluation process. If you are earning more than SGA-level wages, then the SSA will not even reach the issue of your impairments at step 2.
 
You didn't say what kind of work you do, or if you get a salary or hourly wages. However, if full-time work becomes too difficult for you, and you drop down to part-time work and earn less than $980/month, then you would be eligible to apply for SSDI benefits.

I asked one of our Portland, Maine judges this question: How far in advance of a Social Security disability hearing should the hearing brief be submitted?

The answer: 7 days ahead of the hearing.

The deadline for submitting new evidence is 5 business days (which equals 7 calendar days) ahead of the hearing. After the deadline passes, a judge can take a good look at a disability claim file, knowing that all the evidence, absent unusual circumstances, is in the record.

A judge will typically look at the DDS decision and then to the Representative's hearing memorandum to frame the issues in the case. If your brief isn't there yet, you forego an important opportunity to assist the judge with the analysis of the case.

So get your brief in early – at least a week ahead of the hearing.

I wrote two weeks ago about the amazing timeline of one of my Social Security disability cases. To recap, because the bank was foreclosing on the claimant's home, both the local Social Security office and the Portland, Maine hearing office expedited the disability appeal. A hearing was scheduled within 5 weeks from the claimant's receipt of the Reconsideration denial notice from DDS. On the day of the hearing, the U.S. Administrative Law Judge extended his hearing schedule to issue a bench decision granting the disability claim.

Well, the amazing timeline continues. The claimant has now been paid her retroactive benefits. The SSA electronically transferred the funds directly to her bank account. The money arrived yesterday. That's 7 weeks to the day from the date of the Reconsideration denial notice. 7 weeks from denial to receipt of benefits! Kudos to the Social Security payment center for acting quickly in this critical case.

I can't describe the relief I heard from the client when I called to say the claim has been paid. The retroactive benefits are more than enough to get caught up with the bank on the mortgage, and she will have an ongoing disability check to get by.

Severe anxiety can certainly provide a basis for Social Security disability. Anxiety is among the SSA's listed impairments - please see listing 12.06.

I had a hearing last week for a claimant suffering from severe anxiety with agoraphobia. This claimant has been basically housebound by anxiety, and leaves the house only for doctor appointments. Her husband does the food shopping. She buys her clothes online. It was quite clear from her hearing testimony that anxiety was severely limiting all aspects of her life, and employment was not a realistic possibility. Further, I was able to obtain a medical source statement from her treating psychiatrist that assessed severe limitations. The judge found that the claimant met listing 12.06, and issued a bench decision granting the disability claim.

For more information about anxiety and social security disability, there is a link on the sidebar of this site (in the Important Topics section) to the Claimants with Mental Impairments page, which discusses the issues involved with Social Security disability claims involving anxiety and other mental health conditions.

If you are wondering if your anxiety or other mental health condition is severe enough to receive disability benefits (and you live in Maine or New Hampshire), ask for a free Social Security claim evaluation.

 

I was talking with one of our Portland, Maine judges yesterday between hearings. We discussed the amazing timeline of a recent Social Security claim. The judge said that it was helpful in that case to have a request for a bench decision in the hearing memorandum.

A bench decision requires some preparation, because there are several administrative requirements that must be met. When a judge has 5 or so hearings in a row, there may be no time to prepare a bench decision on the spot.

So give your judge a heads up. If your claim is very strong (and particularly if a listing is met), ask for a bench decision in your hearing memorandum.

Disability Determination Services (DDS) is the state agency that makes disability determinations at the initial and reconsideration levels for Social Security disability and SSI claims.

A medical source statement is an opinion from a treating doctor regarding a patient's functional limitations. A medical source statement must be considered when determining the Residual Functional Capacity (RFC) for a Social Security disability claimant. A "medical source statement" and an "RFC" are two different things. The terms are not interchangeable.

The difference between the two terms is explained in Social Security Ruling 96-5p:

The regulations describe two distinct kinds of assessments of what an individual can do despite the presence of a severe impairment(s). The first is described in 20 CFR 404.1513(b) and (c) and 416.913(b) and (c) as a "statement about what you can still do despite your impairment(s)" made by an individual's medical source and based on that source's own medical findings. This "medical source statement" is an opinion submitted by a medical source as part of a medical report. The second category of assessments is the RFC assessment described in 20 CFR 404.1545, 404.1546, 416.945, and 416.946 which is the adjudicator's ultimate finding of "what you can still do despite your limitations." Even though the adjudicator's RFC assessment may adopt the opinions in a medical source statement, they are not the same thing: A medical source statement is evidence that is submitted to SSA by an individual's medical source reflecting the source's opinion based on his or her own knowledge, while an RFC assessment is the adjudicator's ultimate finding based on a consideration of this opinion and all the other evidence in the case record about what an individual can do despite his or her impairment(s).

I recently submitted medical source statements to DDS in support of a client's disability claim. The client has very serious chronic pain due to failed back syndrome. Her doctor gave detailed medical source statements assessing very serious functional limitations, and included his opinion that: "She is unable to stand, sit or walk, or hold concentration for more than 10 minutes at a time. There is no way she can undertake an 8-hour work day."

At Maine DDS, the reviewing physician summarized the treating doctor's medical source statements and concluded:

Statements of Social Security Disability are subject to the sequential evaluation process. Such statements and the RFCs which are used in the process are reserved to the Commissioner.

Not quite.

While statements on the ultimate issue of disability are reserved to the Commissioner, the DDS doctor was absolutely wrong to conclude that the treating physician's opinion regarding his patient's functional limitations is a residual functional capacity assessment. It's not. It is a medical source statement. This is a fairly basic distinction.

The DDS doctor, due to a misunderstanding of basic Social Security rules, did not adequately consider the treating doctor's opinion, or give it the deference required by 20 C.F.R. 404.1527(d)(2).

So now this claim is awaiting a hearing. However, in my view, this claim should have been granted at Reconsideration.

 

The Social Security Administration can move quickly in certain circumstances. One such circumstance is a dire need case. Dire need is a type of critical case, and these claims are expedited by the SSA.

In this particular case, the claimant received a Reconsideration denial letter on February 27th and contacted me. We had our initial meeting the next day. At that meeting, she told me that her home was under foreclosure. She has been unable to work for well over a year, and had fallen behind on the mortgage payments. I asked her to provide me with documentation regarding the foreclosure action.

I received the documentation on March 3rd, and filed a request for hearing and a dire need request that day. Miss Martin of the Saco Social Security field office processed the request for hearing that very afternoon. The claim also received expedited treatment from the Portland Social Security hearing office, and a hearing was quickly scheduled for today, April 2nd. I attended along with the claimant, who testified.

At the end of the hearing, the judge took the extra time required to prepare a bench decision granting the claim.

Just 5 weeks passed from the day the claimant received the Reconsideration denial to the date of a fully favorable decision. That is an outstanding performance by the local Social Security office and by the Portland, Maine hearing office (particularly the United States Administrative Law Judge who heard the case and issued a bench decision). 

This is just the way the Social Security process should operate.

I have an upcoming hearing for a client suffering from chronic severe back pain.

When evaluating a claim involving subjective symptoms such as pain, a Social Security Administrative Law Judge must consider the credibility of the claimant's statements regarding pain and the functional limitations that result.

The judge must determine if the pain is as bad as the claimant says it is, and how severely the pain limits the claimant's ability to work. This necessarily requires a credibility determination.

The SSA has a regulation, 20 C.F.R. 404.1529, entitled "How we evaluate symptoms, including pain." The regulation discusses the factors that must be considered by the judge when assessing credibility. Social Security Ruling 96-7p also discusses those factors. Both the regulation and the ruling include the claimant's prior work record among the factors to be considered. See 20 C.F.R. 404.1529(c)(3) and Ruling 96-7p.

This just makes common sense. A person who has had steady employment for 20 years would be working tomorrow if possible. A person with no history of steady employment, not so much. When my claimant has worked steadily for many years, I always mention that favorable work history to the judge in my hearing memorandum.