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.
