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Disability is Functionality. That is the observation of Long Island, NY disability attorney Jeffrey Delott in his recent blog article with the same title. Jeff writes:

Claimants always seem surprised to learn that their disability applications have been denied even though their doctors provided a letter stating that their patient is disabled or their medical records show that they have a medical condition. The surprise stems from the fact that disability decisions are primarily based upon an individual’s functional capacity as opposed to his or her doctor’s opinion or diagnosis.

Different disability programs or policies use different definitions of disability. For example, you may need to show you cannot do any type of work for Social Security or Long term Disability; whereas, you may need to show you cannot do your past work for worker’s compensation or disability retirement. The claim adjudicator will not assume that the doctor knows the proper definition of disability. Instead, the claim adjudicator will decide if you have the mental and physical ability to do a particular job or category of work.

Applications are frequently denied on the grounds that while a person has a medical problem, there is no evidence that it is severe enough to preclude work. To avoid this, a claimant needs to submit evidence regarding functional limitations.

What matters in a Social Security disability claim is your functional limitations.

Jeff’s article is an excellent distillation of the issue. Disability is functionality.

I am always concerned that a particular claim will not get the attention it deserves at the hearing level, due to the tremendous workload at the Social Security hearing offices. Each administrative law judge decides several hundred claims every year.

Furthermore, the medical basis for disability is often similar from one claim to another. Often, pain prevents a claimant from working, or perhaps mental impairments inhibit the claimant's ability to maintain employment. With so many similar claims decided by each judge, it is important to differentiate your claim whenever possible.

I have an upcoming hearing with a client who has an unusual story. The medical evidence is very good, and the claim should be granted at hearing. Nevertheless, I am spending a great deal of time on the claimant's story (which I can't tell you… sorry), because it is so unusual. That story will be the hook that draws the judge into the case.

When you have a claimant with a remarkable story, you need to tell the judge in a hearing memorandum. The judge will read the memorandum before the hearing, and the unique aspects of the claim will grab the judge's attention. Those unique facts can distinguish your claim, even though the basis for disability may be similar to several other cases being heard that day.

A medical source statement from your treating doctor is a crucial piece of evidence for your Social Security disability claim.

Veterans applying for Social Security disability often receive all their medical care through the VA. It has been a challenge (to say the least) to get VA health care providers to complete Social Security assessment forms.

As an example, look at the letter I received from the Manchester VA hospital after asking the treating PA to complete form HA-1151-BK, which is the official Social Security form for a medical source statement of ability to do work-related activities (physical). The VA letter basically says "It is not our job to do these forms."

Well, the VA has a new directive explaining that VA policy requires medical providers to complete medical assessments for their patients. The directive states that VA providers are required "to honor requests by veterans for assistance in completing non-VA forms regarding their current health conditions and functional impairment." The directive expressly lists Social Security forms among those that must be completed by VA medical providers.

Hat tip to San Francisco Social Security attorney Geri Kahn at the California Social Security Lawyer Blog for writing about the VA's new directive. Geri's post is appropriately titled "Veterans may now find it easier to get their providers to fill out Social Security forms." 

There have been several notable articles recently from the Social Security disability "Blogs of Note" listed on the sidebar of this blog.

At the Portland, Maine Social Security hearing office, attorneys are asked to submit a "statement of the case," or hearing memorandum, several days prior to the hearing. This request comes from the Hearing Office Chief Administrative Law Judge, in a letter that is mailed when the claim is ready to schedule for a hearing.

Social Security's regulations do not require a hearing memorandum. However, the request of the Chief Judge is effectively a command, so the requirement for a hearing memorandum is akin to a local rule.

According to the Chief Judge's letter, a statement of the case should include:

  • A statement of the issues before the Administrative Law Judge, and, if the issue is disability, the period of alleged disability, with any amended onset or duration;
  • A short rationale for each "step" in the sequential evaluation process, always using our exhibit number to refer to supporting evidence;
  • Acknowledgement and discussion of any strongly conflicting evidence, and
  • Acknowledgement that you have diligently provided all reasonably available medical updates known to you, and explaining any missing updates that are material to your case.

That's just the basics. Your memorandum should cover much more. I will discuss the nuts and bolts of writing a hearing memorandum in an upcoming post.

The experience of hundreds of hearing briefs is quite clear. They are very effective. If you take the time to write them, you will win more claims at hearing.

The Global Assessment of Functioning (GAF) is a numeric scale (from 0 to 100) used by doctors and mental health clinicians to rate the social, occupational and psychological functioning of adults.

The scale is found in the Diagnostic and Statistical Manual of Disorders (DSM-IV), which is published by the American Psychiatric Association, and provides the diagnostic criteria for mental disorders.

A GAF score is a useful piece of evidence for a Social Security disability claim. The GAF score is often included in mental health progress notes or evaluations, and it provides an excellent snapshot of the patient's functioning.

What is the sedentary exertional level for Social Security disability?

Social Security classifies the physical exertion requirements of jobs as sedentary, light, medium, heavy and very heavy. See 20 C.F.R. 404.1567. Social Security gives those terms the same meaning as they have in the Dictionary of Occupational Titles.

The sedentary exertional level involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like files or other small items. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary. Jobs are sedentary if walking and standing are required only occasionally, and the other sedentary criteria are met.

Since being on one's feet is required "occasionally" at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. Further, most unskilled sedentary jobs require good use of the hands and fingers. See Social Security Ruling 83-10.

The sedentary exertional level is an important landmark in the Social Security disability landscape.

If there are no sedentary jobs in a claimant's past relevant work, a claimant over 50 who is limited to unskilled sedentary work will win at step 5 via the medical-vocational guidelines.

However, a claimant under the age of 50, or a claimant over 50 with job skills that readily transfer to a significant range of skilled sedentary work, will need additional limitations to prevail. 

When the SSA receives your initial disability claim, it reviews your medical records, and determines your RFC. The problem with this approach is that the SSA does not obtain your doctor's opinion about your limitations. Rather, the SSA reviews your medical records and makes its own determination. 

The SSA's approach was described in a recent post on Tim Moore's My Disability Blog:

Social security never sends an RFC form to an applicant's own doctor. Instead, they have one of their own doctors—referred to as a medical consultant and assigned to a case processing unit with disability examiners—complete the RFC.

The problem, of course, is that a doctor's treatment notes are intended to manage a patient's medical care, not to establish the functional limitations that Social Security uses to evaluate a claimant's ability to work. As a result, the method used by Social Security to evaluate disability often results in a denial of the initial claim.

To remedy this situation, it is very important to obtain your doctor's opinion regarding your physical and/or mental limitations, and how those limitations affect your ability to work.  A medical source statement from your doctor setting forth your limitations due to your impairments is usually the most powerful evidence in support of your disability claim.

For more information on this topic, read Tomasz Stasiuk's excellent post The One Element Missing in Most Social Security Cases: A Medical Opinion of Limitations on his Colorado Social Security Disability Law blog.

At a Social Security disability hearing, sometimes it is very clear that the claim should be granted. In such cases, a bench decision is available to the administrative law judge. A bench decision must be a fully favorable decision.

For a bench decision, the judge sets forth his reasons for granting the claim orally "from the bench" at the hearing. The written decision that follows within a few days is just a few paragraphs in length, and basically incorporates by reference the reasons given on the record at the hearing. Bench decisions are governed by HALLEX I-5-1-17.

Bench decisions preserve scarce resources at the SSA, since staff writers do not have to spend as much time producing favorable decisions. The use of bench decisions is part of the SSA's strategic plan to be more efficient. It makes sense. If you are granting the claim, why write a lengthy decision?

The judges at the Portland, Maine ODAR use bench decisions frequently when granting a claim. And that is one of the reasons that the processing time for claims at that hearing office is one of the lowest in the country.

In contrast, judges at many other ODARs have not embraced the bench decision. I do not understand why. It is a real timesaver. Try a bench decision next time, Judge. Your staff writers will love you for it, and your hearing office director will appreciate the added efficiency, which will result in more decisions from your hearing office each month.