Brief Writing Tips in SS cases

BRIEFING TIPS IN

SOCIAL SECURITY CASES

I.          INTRODUCTION

This paper discusses Social Security cases disability claims on appeal to the federal courts.  The reader will find a list of library requirements

A.        LIBRARY REQUIREMENTS

In order to effectively practice Social Security law, the practitioner must have an adequate library.  The library should include all of the following:

5 U.S.C.  covering the Administrative Procedures Act

28 U.S.C. covering the Equal Access to Justice Act

42 U.S.C. covering Titles II, XI, XVI, XVII and XIX of the Social Security Act

20 C.F.R. parts 404 and 416

Social Security Rulings and Acquiescence Rulings published by the Commissioner of the Social Security Administration in the federal register

Programs Operations Manual System (“POMS”)

Hearings, Appeals, and Litigation Law Manual (“HALLEX”) 

Dictionary of Occupational Titles published by the Secretary of Labor

Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles published by the Secretary of Labor

Occupational Outlook Handbook

County Business Patterns

II.         SUBSTANTIVE ISSUES ON A COMPLAINT FOR REVIEW

The biggest difference between the Appeals Council and the federal courts is the liberality with which the Appeals Council will accept new and material evidence.  20 C.F.R. §§ 404.970(b); 404.976(b)(1); 416.1470(b); 416.1476(b)(1).  The federal courts will only review evidence not considered by either the ALJ or the Appeals Council (depending on jurisdiction) for which good cause is shown to explain away the earlier non-submission.  42 U.S.C. § 405(g)(sentence 6). 

The test for the sufficiency of a decision by the Commissioner to deny benefits rests upon the regulatory framework of decision-making.  The Commissioner uses the five-step sequential evaluation process to make decisions.  20 C.F.R. §§ 404.1520; 416.920.  Those steps are:

1)      Whether the claimant is engaging in substantial gainful activity;

2)      Whether the claimant suffers from a medically determinable impairment or combination of impairments that is “severe;”

3)      Whether the claimant meets or equals any “listed” impairment;

4)      Whether the claimant retains the ability to perform his past relevant work; and

5)      Whether the claimant can perform any other work in light of his residual functional capacity, age, education, and work experience. 

Id. 

From an analytical standpoint, I prefer to attack an ALJ decision from the bottom to the top.  By using this methodology, I assume the correctness and defensibility of the decision and unwrap the onion one layer at a time.  It is easier to take nibbles than swallow the beast in one gulp.  In reviewing the writings of other lawyers, I have found that lawyers miss issues more when they leap at an issue rather than analyzing the case bit by bit. 

A.           THE EXISTENCE OF OTHER WORK

My first step inquires whether the ALJ properly found the ability to perform other work.  This step five of the sequential evaluation process inquires whether the claimant could perform work never before performed in light of his age, education, and work experience.  Several tools assist in this process.

Vocational expert testimony used to identify the existence of work activity must either conform to the Dictionary of Occupational Titles and its companions or provide a reasonable explanation for any such deviation.  Social Security Ruling 00-4p.  It is impossible to assess an ALJ’s step five conclusion that a person could engage in substantial gainful activity without comparing any testimony to the DOT and its companions. 

The DOT describes the work generally.  It describes the exertional demands, from sedentary to heavy.  Unexplained deviation from the exertional demands of identified work is error under Social Security Ruling 00-4p.  The describes the skill or training level required of the work activity, known as the SVP.  Skills do not transfer to unskilled work.  Nor do skills transfer to work requiring a higher SVP. 

The DOT and its companion publications describe skill sets.  This is done with work fields and with materials, products, subject matter, and services (MPSMS) codes.  Some publications take the stance that skill will only transfer within same or similar work fields and MPSMS codes.  See Not Just Any TSA, presented at this conference. 

The DOT and its companion publications describe aptitudes, temperaments, physical demands, and environmental conditions.  These rich sources of information describe the general learning ability of work, the dexterity requirements of work, the degree of exposure to the public, the stooping required, the amount of manipulation of objects required, the sound levels, and whether work is performed outdoors, to name a few.  The Social Security Administration does not pay vocational experts enough to check their stock answers against the particulars of the DOT and its companion publications.  At the hearing and on appeal, I inquire, trust, and verify. 

Another tool for examining the sufficiency of the step 5 determination is the grids.  The grids appear at 20 C.F.R. part 404, subpart P, Appendix 2.  Neither an ALJ, a vocational expert, or other component of the Social Security Administration may rebut the findings of disabled directed by the grids.  Social Security Ruling 83-5a.  Therefore, an individual falling into a grid that directs a conclusion of disabled must be found disabled, despite any testimony from a vocational expert to the contrary.  Distasio v. Shalala, 47 F.3d 348, 350 (9th Cir. 1995); Cooper v. Sullivan, 880 F.2d 1152, 1156-1157 (9th Cir. 1989). 

B.         THE ABILITY TO PERFORM PAST RELEVANT WORK AND RESIDUAL FUNCTIONAL CAPACITY

The question of whether a claimant can perform past relevant work raises many of the same issues and techniques as the ability to perform other work.  If an ALJ finds that a claimant can perform past relevant work, I check the residual functional capacity findings against the requirements of the work activity generally and specific to this claimant for conformity with the DOT and its companion publications.

The biggest issue at step four of the sequential evaluation process, and the biggest issue to confront the test of ALJ decisions is the resolution of the issue of the claimant’s residual functional capacity.  The determination of residual functional capacity requires that the ALJ blend together the medical evidence, lay evidence, and the subjective complaints of the claimant.  I typically attack each piece of this puzzle individually. 

1.            THE MEDICAL EVIDENCE

Medical evidence in a Social Security case comes in three flavors:  (1) treating evidence; (2) one-time examining physician evidence; and (3) non-examining physician evidence.  Each piece of evidence plays a role in the disposition of a Social Security disability claim. 

The Commissioner articulates a preference for the opinions of the treating physician.  20 C.F.R. §§ 404.1527; 416.927.  As long as the opinions of a treating physician are “not inconsistent” with the balance of the record and is well-supported by medically accepted clinical and laboratory diagnostic techniques, the ALJ must give the opinions of the treating physician “controlling weight.”  Social Security Ruling 96-2p.  I argue that “not inconsistent” means something broader than “consistent” because it is clear that the Commissioner uses the double negative in both the regulations and the ruling intentionally. 

The opinions and findings of examining physicians form the fulcrum against which the opinions of treating physicians are gauged.  I look for similarity of findings and clinical signs, similarity of diagnostic impressions, and similarity of medical source statements about what the claimant can and cannot do.  See Social Security Ruling 96-8p (residual functional capacity is the most that the claimant can do). 

The more interesting and probably underutilized source of appeals on the decisions of an ALJ is the use of the opinions of non-examining physicians.  The ALJ has an obligation to state the weight given to state agency opinions.  20 C.F.R. §§ 404.1521; 416.921; Social Security Ruling 96-6p.  Because the state agency physician or a testifying medical expert is a program physician, the Commissioner entrusts him with the knowledge of the medical requirements of the Social Security regulations.  20 C.F.R. §§ 404.1527(f); 404.1502; 416.927(f); 416.902; Social Security Ruling 96-6p.  The ALJ may not simply disregard an uncontradicted synthesis of the record set forth by a reviewing physician. 

2.            LAY EVIDENCE

The regulations have long provided for the consideration of evidence that does not qualify as an “acceptable medical source.”  20 C.F.R. §§ 404.1512, 404.1513(d), 416.912 and 416.913(d).  In 2006, the Commissioner published Social Security Ruling 06-3p.  In that ruling, the Commissioner directs the ALJ to consider:

“The examining relationship between the individual and the ‘acceptable medical source’;

The treatment relationship between the individual and a treating source, including its length, nature, and extent as well as frequency of examination;

The degree to which the ‘acceptable medical source’ presents an explanation and relevant evidence to support an opinion, particularly medical signs and laboratory findings;

How consistent the medical opinion is with the record as a whole;

Whether the opinion is from an ‘acceptable medical source’ who is a specialist and is about medical issues related to his or her area of specialty; and

Any other factors brought to our attention, or of which we are aware, which tend to support or contradict the opinion.  For example, the amount of understanding of our disability programs and their evidentiary requirements that an ‘acceptable medical source’ has, regardless of the source of that understanding, and the extent to which an "acceptable medical source" is familiar with the other information in the case record, are all relevant factors that we will consider in deciding the weight to give to a medical opinion.”

An ALJ was never free to disregard evidence from non-physicians.  This ruling makes that abundantly clear in an enforceable format published in the Federal Register. 

3.            SUBJECTIVE COMPLAINT TESTIMONY AND EVIDENCE

The greatest source of evidence of what a claimant can and cannot do despite the existence of severe impairments is the claimant himself.  The evidence from the claimant comes in the form of statements submitted with the application for benefits, statements made on questionnaires sent by the state agency, statements made in conjunction with a request for reconsideration or request for hearing, and the testimony given at the hearing itself.  The Commissioner does not insist that the subjective complaint testimony match up with the medical evidence.  In Social Security Ruling 96-7p, the Commissioner sets out the “excess pain standard” as requiring consideration of:

           

1.      The individual's daily activities;

2.      The location, duration, frequency, and intensity of the individual's pain or other symptoms;

3.      Factors that precipitate and aggravate the symptoms;

4.      The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;

5.      Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;

6.      Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and

7.      Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.

An ALJ decision that seeks to reject the testimony of a claimant should always recite the standard set forth in Social Security Ruling 96-7p.  The question that I address in a brief to either the Appeals Council or the federal courts is whether that articulation required by the ruling is both reasonable and supported by substantial evidence of record.

C.  THE LISTINGS

The listings of impairments appear in the regulations at 20 C.F.R. part 404, subpart P, Appendix 1.  Each of the listings states that meeting or equaling a listed impairment presumes that the individual could not engage in gainful activity.  The statutory test for disability is the inability to engage in substantial gainful activity.  Therefore, the failure to meet or equal a listed impairment is never fatal to a claim for adult disability.  Childhood disability is beyond the scope of this paper. 

The listings are detailed and objective evidence oriented.  The listings require specific clinical or laboratory findings.  While equaling a listing is possible during a hearing, it is difficult to allege and prove on appeal except when two or more listings are close.  To challenge the ALJ’s findings that the claimant does not meet a listing, I compare the listing’s requirements to the clinical and laboratory findings throughout the record.  If all of the findings are present, just not in the same place, the issue exists.  Otherwise, it does not.  I will make an argument that someone that comes extremely close to meeting a listing would have a lesser residual functional capacity for work activity.  After all, the meeting or equaling of a listing implies the inability to engage in gainful activity and the residual functional capacity assessment concerns the ability to engage in substantial gainful activity on a full-time basis.  Social Security Ruling 96-8p. 

D.        THE PRESENCE OF A MEDICALLY DETERMINABLE SEVERE IMPAIRMENT

The Social Security Act requires that the Commissioner make a determination of disability on the basis of medically accepted clinical and laboratory diagnostic techniques.  The Commissioner uses the “severe” question to weed out claims that have no merit without the need to address more complicated factual questions in the sequential evaluation process. 

The Commissioner defines a severe impairment at 20 CFR § 404.1521 as follows:

(a)    Non-severe impairments(s).  Any impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.

(b)   Basic work activities.  When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs.  Examples of these include –

(1)   Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;

(2)   Capacities for seeing, hearing, and speaking;

(3)   Understanding, carrying out, and remembering simple instructions;

(4)   Use of judgment;

(5)   Responding appropriately to supervision, co-workers and usual work situations;  and

(6) Dealing with changes in a routine work setting.

The regulation is constitutional.  It is a threshold finding for which there are no “gray” areas.  Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). In assessing whether an impairment is “severe” the ALJ must consider the combined effect of all of the claimant's impairments on his ability to function, without regard as to whether each impairment alone is severe.  Simply put, step two of the sequential analysis is “a de minimus screening device to dispose of groundless claims.”  Smolen v. Chater, 80 F.3d at 1291 citing Bowen v. Yuckert, 482 U.S.at 153-154, 107 S.Ct. at 2297-98.

The most common area of error in failing to find a severe impairment is in the realm of mental impairments.  When it comes to mental impairments, the opinions of state agency physicians take on greater importance. 

E.         ENGAGING IN SUBSTANTIAL GAINFUL ACTIVITY

Among the five step sequential evaluation process, this is the most rare of issues.  The Social Security Administration generally takes the word of the claimant about the presence of work activity.  Work activity within 12 months of the date of onset of disability in the absence of a prior finding of disability may preclude a finding of disability.  Barnhart v. Walton, 535 U.S. 212, 217-22, 122 S. Ct. 1265, 152 L. Ed. 2d 330 (2002) (impairment and inability to work must last twelve months). 

An individual may begin a trial work period after the onset of disability and after the filing of an application for disability insurance benefits.  20 C.F.R. §§ 404.1579; 404.1588; 404.1598.  Claimants under either title can take advantage of the unsuccessful work attempt classification for work activity less than three months and in some circumstances less than six months.  Social Security Ruling 05-02.  

Current work activity does not foreclose a grant of disability for a prior period.  Earlier work activity that prevents a grant of disability does not foreclose a later onset of disability. 

F.         WRITING THE BRIEF

Focus on the theory of the case.  Many errors have no reason to get briefed.  Only brief material issues.  If the error does not bring the claimant closer to a favorable result but just tells the Court how really bad of a decision is on review, omit it.  This is not a conversation in the wee hours of the morning complaining about the ills of the world.  The Judge or Magistrate Judge have better things to do than entertain a gripe session in writing. 

Write better and shorter.  “Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte.”  I would have written a shorter letter, but I did not have the time.  Blaise Pascal. 

Write more clearly.  Buy and use a style guide.  Garner's Modern American Usage or The Elements of Legal Style, by or edited by Bryan Garner belong on every writer’s desk.  Other style guides work as well but everyone can get better.  Refusing to consult a style guide to improve writing is like a world class athlete that forgoes a coach, after all he/she is already a world class athlete. 

And my pet peeve – throw away the verb “to be.”  Writing in the passive voice represents a snap shot, a static view of the world.  Writing in the active voice produces a cinematic experience that moves.  Compare, “Dr. Smith is the treating physician” with “Dr. Smith treated Claude Claimant.”  The first suggests only status, the second suggests an active relationship. 

V.        CONCLUSION

The existence of an ALJ or Appeals Council decision does not spell doom for the claimants case.  The District Court can provide relief.  The courts grant relief in about 50% of the cases filed.  Cite the rulings, the regulations, and applicable circuit precedent and other authority, in that order.  Focus on the issues that show that the claimant can win, not on extraneous issues that are not demonstrably material to the outcome of the case.  The most important practice pointer that I can give is simple, hunt with a rifle and not with a shotgun.