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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.

One of the most important things you can do for a client as a Social Security disability lawyer is to request reopening of a prior claim. In my opinion, the issue of reopening does not get enough attention.

Reopening a prior claim can add substantially to the retroactive benefits payable to your client. At a recent hearing of mine, the judge agreed (based upon new and material evidence) to reopen an SSI claim filed 22 months prior to the current claim. That is a welcome lagniappe for an SSI claimant.

Reopening is governed by 20 C.F.R. 404.988 for disability claims and 20 C.F.R. 416.1488 for SSI claims. 

A prior claim may be reopened within 12 months for any reason. The 12 month period runs from the date of the initial denial of the prior claim.

A prior Social Security disability claim can be reopened within 4 years if there is good cause. An SSI claim can be reopened within 2 years for good cause. In most cases, "new and material" evidence is the basis for a finding of good cause. The 2-year and 4-year time periods run from the date of the initial determination of the prior claim.

As a lawyer, you must check with the SSA for prior claims. You should not rely on the client for this information.

Social Security must consider the combination of your impairments when considering your eligibility for benefits. Even non-severe impairments must be considered in combination with your severe impairments. See 20 C.F.R. 404.1523.

This can be very important. Sometimes a seemingly minor impairment can rule out your past relevant work, and move your claim past step 4 of the sequential evaluation process. 

I have had cases where past relevant work was ruled out due to asthma (can't be around fumes), near blindness in one eye (no depth perception for factory work), and moderate anxiety (cannot interact with the general public), when those impairments were combined with the claimant's other impairments. Each of these claims then won at step 5 of the sequential evaluation process, via the medical-vocational guidelines.

Remember, your RFC must include all your impairments, even non-severe ones.

Drug addiction or alcoholism (DAA) cannot be a basis for Social Security disability. In fact, if DAA is a contributing factor material to your disability, you are not entitled to disability benefits. See 42 U.S.C. 423(d)(2)(C).

Social Security has a regulation governing how it will determine whether or not DAA is material to a disability claim. For an SSI claim, the regulation is 20 C.F.R. 416.935. The key factor is whether Social Security would still find a claimant disabled if that claimant stopped using drugs or alcohol.

To do this, the SSA must evaluate which of the claimant's impairments would remain if the claimant stopped using drugs or alcohol. The SSA will then determine whether or not the claimant's remaining limitations would be disabling. If the remaining limitations would not be disabling, then DAA is a contributing factor material to disability, and the claim would be denied.

However, sometimes it is impossible to untangle the effects of DAA from other impairments, particularly mental impairments. If the judge cannot determine the effect DAA has on the claimant's impairments, then DAA is not material. A tie goes to the claimant, pursuant to emergency message 96200 (see question #29).

Social Security Rulings are policy interpretations issued by the SSA. Social Security Rulings are binding on all components of the SSA, and are to be relied upon as precedents when adjudicating other cases. See 20 CFR 402.35(b)(1).

Social Security disability lawyers refer to the Rulings regularly. The Rulings contain very useful explanations of SSA's policy, and offer more detail than the regulations. If there is a Ruling on a topic at issue in your case, that Ruling is mandatory reading for your disability lawyer.

Sometimes, however, it can take a little while to find the particular ruling you need. This is partly due to the Rulings' odd numbering system.

Recently, the SSA published a new index of the rulings, grouping them by subject matter. It is a very helpful index, and I have added it to the "Resources of Note" section on the sidebar of this blog.

Hat tip to JOA on the Connect discussion board for the catch.

This Google search question led a recent visitor to the blog: Can disability go retroactive from the onset date rather than the date you apply for benefits?

I will answer that question right now.

Disability benefits are never paid retroactively from the onset date, because by definition you were not disabled prior to your onset date. However, both your onset date and your filing date are relevant to the determination of your benefits. 

For an SSI claim, benefits begin on your filing date if your claim is granted. There are no benefits available prior to your filing date for SSI, regardless of your onset date.

For Social Security disability, retroactive disability benefits are paid for up to 12 months prior to your filing date, depending upon the interrelation beween your filing date, your onset date and the 5 month waiting period. 

Benefits begin 5 months after your onset date. However, retroactive benefits do not extend further back than 12 months prior to your filing date. Let's look at an example.

Continue Reading Google Search Question – 3

I had a Social Security disability hearing with an administrative law judge at the Manchester, New Hampshire ODAR recently. I prepared a hearing memorandum for the judge, as is my practice.

The judge acknowledged my hearing memorandum, and said "I wish more of your colleagues would prepare them."

A hearing memorandum is not required at the Manchester ODAR, but you should submit one anyway. It is a real help to the judge, who after all, is the person deciding your disability case. Why wouldn't you want to help the judge grant your case?

If you are representing Social Security disability or SSI claimants in New Hampshire (or elsewhere), write a hearing brief.

An award of disability benefits under the Social Security disability insurance program comes with Medicare insurance. But not right away. Rather, the insurance begins two years after your date of entitlement. Your date of entitlement is your onset date plus the 5 month Title II waiting period.

In a typical disability case, that waiting period may not matter. Often claimants are out of work for a while before they apply for disability benefits, and if the claim is initially denied, two years from the date of entitlement may pass before a hearing is held and a decision issued.

But for claimants with the most serious and life-threatening medical conditions, the medical insurance is a necessary part of the program. For those claimants, the 24 month waiting period can present a tremendous hardship.

Waiting two years for Medicare insurance benefits has a tremendous human cost for those who are too sick to work, too soon for Medicare. Fortunately, fixing this problem is the topic of ongoing political discussion.