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Practicing Social Security Law by Alan Stuart Graf (My special thanks to James Publishing and Tom Bush for allowing me to use a few excerpts and ideas from their book on Social Security Disability Law.) The Social Security Disability Claim Appeal Process Initial Application: Your initial social security disability and/or supplemental security income application can be filed by telephone by dialing 1-800-772-1213. If your claim is denied, you must appeal the denial within 60 days of the denial date. At this stage of the application process, the Social Security Administration contracts the Oregon Department of Disability Services (DDS) to determine whether you are disabled. DDS is located in Salem, Oregon and will contact you by telephone and/or letter during this process. You may be asked to see a doctor, psychologist, and/or a vocational evaluator. If so, please let our office know who you are scheduled to see. It is very important that you keep any evaluation appointments scheduled for you by Social Security. Please be completely honest about your condition and do your best during any testing. Do not exaggerate your condition in any way, as the experts are trained to recognize any exaggeration of symptoms and may use it against you. It normally takes two to four months to receive a decision on your initial claim. If you are denied, we need to file an appeal within 60 days. We normally do not assist clients with the initial application process. Request For Reconsideration: This stage of the Social Security appeals process is also handled by DDS. At the reconsideration stage, you are asking DDS to admit that they made a mistake when they denied your initial application. As you can guess, DDS usually believes it was right the first time. Do not be surprised if DDS denies your claim a second time. DDS normally makes this decision in approximately four months. If you do not hear anything after four months please call us. DDS may again ask you to see a doctor, a psychologist, and/or a vocational evaluator. If DDS denies your case again, we must appeal their decision within 60 days of the denial date by requesting a hearing in front of an Administrative Law Judge. This is the stage where we normally become involved in a case. Request For Hearing: Once a Request for Hearing is filed, you will receive a letter stating your request for a hearing has been received by the Office of Hearings and Appeals. If you do not receive such a letter in the first month, please call us so that we can find out why your request has not been processed. After you have received your letter stating that the Office of Hearings and Appeals (OHA) has received your request for hearing, you will not hear from OHA for about nine to twelve months. The hearing office takes a nine to twelve month period to process the thousands of cases that are submitted to their office. You will normally not hear much from our office during the time you are waiting for your hearing. During this time period it is important for you to continue to see your treating doctors or medical providers as often as possible for treatment for your impairment. When seeing your providers, make sure you mention to them how your impairments affect your ability to do tasks around the house, interact with others and generally affect your life and lifestyle. Normally, your complaints will be written down in the medical record. This written documentation will help support your case at the upcoming hearing. After a wait of approximately nine to ten months, you will receive another questionnaire from the Office of Hearings and Appeals (OHA) entitled "Claimant’s Questionnaire." This questionnaire is an indication that your file is being prepared for a hearing by OHA. When you receive this questionnaire, please fill it out completely and send it to our office as soon as possible. We will forward it to OHA and begin to update your Social Security file with current medical records. We appreciate any assistance that you can give us collecting your medical records because most of the time doctors will not charge the patient for their own records. Doctors almost always charge attorneys for records. Your assistance in securing records will help keep costs you are responsible for paying down. Please do not ask your doctor to write a letter on your behalf for your Social Security case. It can hurt your case rather than help it. Doctors are not aware of Social Security law and without our guidance may write something not in conformity with the law. Once we receive notice that your hearing is coming up, we will set up an appointment with you to meet with your attorney. At this conference your attorney will review your case, prepare you for the hearing, and determine what additional evidence we may need to collect. This appointment usually takes about an hour. Next you should receive a formal Notice of Hearing from the Office of Hearings and Appeals stating the date and location of the hearing. You should double check this Notice to verify the information you have been given about your hearing is accurate. On the date of the hearing, please be at the Office of Hearings and Appeals one half hour before the hearing for additional review of your case with your attorney. At your hearing, the judge may decide your case at the hearing, although this is rare. If he/she does not approve your appeal at the hearing you may have to wait from two to six months for a written decision. If you have not received a decision by the third month after the hearing, please call us and we will write the judge a letter asking for the status of your case, as a gentle reminder. If the judge denies your case we will have 60 days to appeal the judge’s decision.
If we appeal the denial of your case by the Administrative Law Judge, your file and the decision are sent to the Appeals Council in Falls Church, Virginia for review. The Appeals Council may affirm the Judge’s decision denying benefits, reverse the decision and grant you benefits, or send your case back for another hearing. Normally the AC agrees with the judge’s decision. This appeals process can take anywhere from two months to two years for completion, although usually we receive a decision from the AC within six months. If the Administrative Law Judge’s decision is affirmed we will consider filing a federal lawsuit in the U.S. District Court against the Social Security Administration. If the AC affirms the judge’s denial we generally recommend that besides filing a lawsuit against Social Security, you file a new application for disability and use the day after the hearing date as your on-set of disability date for this second claim. If you re-apply, we do not automatically represent you in your new case. You will need to contact us if you would like us to represent you on your second claim. Please do not assume we are your representative for this second claim. If you hire an attorney for the second claim the Administration must receive official notice of your representation. US District Court: It will normally takes approximately nine to twelve months to receive a decision from the federal court from the day we file a lawsuit on your behalf, although it may take longer. A lawsuit can produce three different results: 1) the best result is that the federal judge orders the Social Security Administration to pay you benefits; 2) the next best result is that the Social Security Administration (or the court) agrees to send your case back for another hearing, usually with the same Administrative Law Judge; and 3) the worst result is that the court agrees with the Administrative Law Judge’s denial of your case. If the Social Security Administration or court sends your case back for another hearing, it will take from three to eight months to have that hearing. If the Administrative Law Judge denies your case again, you can appeal that denial directly to federal court. If the court agrees with Administrative Law Judge’s denial of your case, we have the option of appealing your case to the Ninth Circuit Court of Appeals located in San Francisco. Before we file an appeal with the Ninth Circuit Court of Appeals, we have to be convinced that the federal court made an error that the Ninth Circuit will reverse. Ninth Circuit cases are time, work and paper intensive. The bottom line for all of our clients is this: if we believe your case has merit, we will appeal all of your decisions until we cannot appeal anymore. The appeals take a lot of time, but we are determined to continue to work on your case until we win for you or until we reasonably cannot do anymore for you. If you win your case and are awarded benefits, it can take two to six months to calculate your payment amounts and begin payment. If your claim is for SSI, Social Security will ask you to come in for an interview to verify your current and past income. You can reach us Monday through Friday from 9AM to 5PM (except at lunch time from 12-1) at 503-452-2375 or 503-2285222. If you call us and we are not in, please leave a message and we will try to return your call within 24 hours, although sometimes we may take a little longer than that;
I.
The Benevolent Purpose of the Act The President (FDR) believed strongly that, besides taking
the emergency measures necessary to relieve the human distress caused by
the Great Depression, it was essential to develop a long-range program to
protect the American people from the ill effects of unemployment and other
personal economic hazards.
III.
The Strengths and Weaknesses of the Disability System
C. Proportionality of
Payments/Minimal Payments
...he and countless disability claimants are left with a
series of enactments which sound principled, fair, and bound to lead to a
just adjudication, but which in reality are toothless pronouncements
assuring nothing more than that they will be notified of–but will have
no opportunity to challenge–the results of an investigation conducted by
SSA. Congress simply has not
mandated any particular standard for disqualification of ALJ’s, seen fit
to impose any particular deadlines on the SSA to finalize its bias
procedures, or require that the interim procedures outlined in October
1992 follow any specific time line. The SSA has not imposed such standards
or time lines on itself, but has instead reserved unto itself the
authority to fashion “appropriate” actions. Lowry
v. Massanari,
2001 WL 34047027 (D. Or.) (Apr. 5, 2001) at 12.
2. Date of Birth;
3. Date of Alleged Onset of Disability;
4. Dates of Application;
5. Dates of Initial Denials;
6. Past Relevant Work — which includes the details of the work
including the number of hours sitting, standing and the amount of weight
lifted. I also want to note
how much money they made at the job.
7. The Claimant’s complaints and any witness’s responses to
questions posed by DDS;
8. The DDS doctors’ reviews and assessments including examining
and non-examining doctors;
9. Any other assessments by medical professionals;
10. Any opinions or comments by the claimant’s past co-workers,
employers and/or vocational rehabilitation experts; and
11. The entire medical record noting when and where the record
supports a finding that the claimant cannot work full-time.
2. Work An individual shall not be considered to be under a
disability unless he furnishes such medical and other evidence of the
existence thereof as the Commissioner of Social Security may require.
An individual's statement as to pain or other symptoms shall not
alone be conclusive evidence of disability as defined in this section;
there must be medical signs and findings, established by medically
acceptable clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could reasonably be
expected to produce the pain or other symptoms alleged and which, when
considered with all evidence required to be furnished under this paragraph
(including statements of the individual or his physician as to the
intensity and persistence of such pain or other symptoms which may
reasonably be accepted as consistent with the medical signs and findings),
would lead to a conclusion that the individual is under a disability.
Objective medical evidence of pain or other symptoms established by
medically acceptable clinical or laboratory techniques (for example,
deteriorating nerve or muscle tissue) must be considered in reaching a
conclusion as to whether the individual is under a disability.
Any non‑Federal hospital, clinic, laboratory, or other
provider of medical services, or physician not in the employ of the
Federal Government, which supplies medical evidence required and requested
by the Commissioner of Social Security under this paragraph shall be
entitled to payment from the Commissioner of Social Security for the
reasonable cost of providing such evidence. 42
USCA § 423
1. How often do you experience pain?
(Hourly, daily, weekly, etc.) 2. How severe is the pain experienced? (on a scale of 1-10,
10 being the most severe.) This question can be sub-divided as follows: a) ask the
claimant to describe the range of pain experienced from low to high; b)
ask the claimant to describe the pain experienced when on medication until
after the effects of the medications wears off; and c) ask the claimant to
describe the pain in different parts of his body and contrast those parts
in terms of severity of pain.
It sometimes helps to describe the severity of the #1 point on the
pain scale as something like a mosquito bite, and the #10 point as
something as severe as child birth or the need to go to the emergency
room. 3.
What physical positions or activities aggravate the pain?
4. Where do you experience pain?
5. Do you have good days and bad days?
a. The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or other
symptoms;
5. Doctors and Treating
Sources b.
Sitting, Standing, Lifting, Walking, Squatting, Crawling, Bending,
Turning, Twisting, Fingering, Feeling, Manipulating, Grabbing, Grasping,
Squeezing, Pushing, and Pulling
Use these
functional activities to assess and determine what your client can do, how
long they can do it, and with what intensity (e.g., weight limitations or
limitations on repetitive activities).
Find out whether your client can do these activities on a daily
basis or only a few days per week or per month, and also if there are some
things they can only do on “good days.”
First, you want to reacquaint your client with his previous
testimony and make sure he hasn’t substantially changed his testimony.[10]
The ALJ may look at his prior testimony to see if there are any
inconsistencies with the claimant’s current testimony. Next, you want to
determine if the claimant’s condition has gotten better, worse or
remained the same.
It is also important to establish what exactly the claimant does
around his house; how much time he spends with each activity; what effects
those activities have upon him such as causing pain or other symptoms; and
how much time he needs to recover from those symptoms.
1. Clothing
I advise my
clients to dress casually and not to dress up.
In fact I had a client who came to the hearing with her nails and
hair neatly done. The ALJ
later used her appearance as one factor in disqualifying her.
Subsequently, a federal judge rejected the ALJ’s use of the
claimant’s clothing as a credibility factor. Let
your client know questions will be asked of them at the hearing
concerning:
2. Education 3. Medical history which includes treatment, prescribed medications and any other treatment
4. Symptoms 5. How their symptoms effect their ability to work 6. The type and amount of activities they perform during their day to day lives
Another problem comes up when you have good days and bad days. For
example, on good days, the client might be able to sit or stand or walk
for much longer than she can on a bad day. If your client has good days
and bad days, have your client describe what it’s like on a good day and
what it’s like on a bad day. Be prepared, though, for the judge to ask
the client for an estimate of how many days out of a month are good days
and how many days are bad days. A
lot of people answer such questions as, “well, I never counted them.”
Count them. The judge will need this information.
7. Mental Limitations
Many people who suffer physical impairments are afraid to talk
about the emotional component of pain for fear they will be viewed as
crazy. Having such problems doesn’t mean they are crazy. It probably
means they are normal. For example, if your client's anger problems interfere with their ability to concentrate and stay on task, the client should give examples of how those symptoms effect their ability to concentrate, remember, get along with others including friends and family members. Mental problems can also cause decompensation. In other words, is your client going to be dependable on the job, or are their mental problems going to cause them to miss work regularly or get into arguments or confrontations with co-workers and/or supervisors.
8. Aspects of the Job that
Cause Stress
The client may be asked how they can handle stress on the job.
Note the following aspects of a job that could cause stress and
include them in your questioning of the client at the hearing. 2. Need to take directions and orders from supervisors and co-workers 3. Need to be pleasant and civil when dealing with co-workers, supervisors and/or the public 4. Need to show up on time every day five days a week, 8 hours a day, 4.3 weeks per month 5. Need to work in team settings (in certain jobs) 6. Need to deal with various personalities and on the job politics inherent in any job setting
Most Vocational Experts will admit that
stress is very subjective. Stress is also dependent upon the skill
level of the claimant. For example, someone with a Phd might find
assembly work stressful because it doesn't challenge their abilities,
while someone who has worked at unskilled jobs before might find
assembly work stressful because of the demands in production inherent in
the job.
VI. Witness Development
A. The Treating Source’s Opinion
The most
important piece of evidence you can secure and submit is the treating
source’s opinion. Social Security regulations distinguish between
opinions coming from “acceptable medical sources” and those from
“other sources.” 20 C.F.R.
§§ 404.1513(a) and (e), 416.913(a) and (e).[14]
Acceptable medical sources specifically include licensed physicians
and licensed psychologists, but not nurse practitioners, mental health
counselors, chiropractors or other non-doctor practitioners.
404.1513(a)(1) and (3); 416.913(a)(1) and (3).
However, a nurse practitioner or any other practitioner working
either as part of an interdisciplinary team or in conjunction with a
physician or psychologist constitutes an acceptable medical source.
Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.
1996).
Due to conflicting regulations, ethical duties and orders from OHA,
I no longer send letters or forms to treating sources requesting their
opinion as to the client’s functional capacity.
Instead, if I can, I set up a phone conference with the treating
doctor, ask them specific questions while explaining to them what I am
after in terms of social security law.
I listen and take notes. At
the end of my discussion with them I repeat my notes of our conversation
asking them if it accurately reflects their opinion and have them send me
a letter incorporating those statements.
I follow these procedures for a number of reasons.
First, keep in mind the letter generated from the treating source
regarding the client’s ability to perform work like functions is the
most important piece of evidence you can secure on your client’s behalf.
The content, reasoning and tone of the letter can make or break your
client’s case. Second,
sending a letter to a doctor asking them questions can lead to incorrect
or inaccurate responses depending upon whether the doctor understood what
was asked of him or her and whether they took the appropriate amount of
time to give a reasoned response. As
an advocate, you relinquish control over the doctor’s response by
sending them a letter or form without being able to communicate with them
as they respond. Also, you
risk having in your possession an unfavorable opinion in writing from the
treating source.
Finally, by personally talking with the treating source you have
the ability to answer questions from the doctor and clarify exactly what
information and opinions you are looking for.
By that, I don’t mean to imply this gives you an opportunity to
tell the doctor what to say. It does, however, allow you to shape the
doctor’s response particular to the regulatory requirements.
For example, the statement “[i]n my opinion the client is
disabled” is not specific enough to satisfy the regulations and will not
be given much weight by an ALJ.
The following provides the structure I use in a phone interview
with a treating source.
1. First explain to the source that you are the patient’s social
security lawyer and that the doctor’s opinion is the most important
piece of evidence in securing benefits for the client.
Doctors need to know this information, especially those who are
reluctant to give medical opinions. If
a doctor responds to my explanation that they do not give disability
opinions or they are not a specialist in disability evaluations, I state
to them the following: Doctor,
as you know pain and fatigue are subjective symptoms.
I know you are aware that there are no medical tests or technology
that is available today to accurately ascertain the level of a patient’s
pain. In fact, some patients
can more easily tolerate the same amount of pain than others.
Given the nature of pain, social security judges especially value
your opinion regarding the severity of your patient’s symptoms because
you have the medical education and background, you have seen the patient
through a longitudinal period of time, you have made clinical observations
of your patient, you have performed physical examinations of your patient
and you have prescribed the type and proper amount of medication for pain
and the symptoms complained of based upon all of the above factors.
Correct?
You can also explain to the doctor that you are not asking her for
a “disability opinion.” You
might explain to the doctor that Doctor,
the term “disability” in social security is a precisely defined term
dependant upon statutes, regulation and case law. Its meaning is different
from common parlance. For
example, did you know that if your patient can work regularly part-time at
a job, they can still qualify for disability.
If appropriate, you can also add here that if the claimant is
limited to sedentary work and is over fifty years of age, she may be found
disabled on that basis alone.
What you are doing is educating the doctor and letting them know
that they can be helpful to their patient even though they previously
thought the contrary.
If the doctor is ready to proceed then:
2. Explain the structure of the interview: you will ask questions,
take notes, repeat them back, verify their accuracy, and probably ask for
a letter.
3. The questions:
a. Credentials–specialties
b. Are you the
claimant’s treating doctor, psychologist, etc.?
c. How long have you been treating her?
d. With what
regularity?
e. What’s your diagnosis, prognosis?
f. What treatment has
been/is currently prescribed? g.
Depending upon the claimant’s impairments, at this point I list some of
the complaints of the claimant — what
she claims she can and can’t do — and ask the doctor: based upon the
patient’s history, your clinical observations and the objective evidence
in the record, do you believe that these claims are accurate?
Get the doctor to commit to a time period for these limitations as
well, even if they didn’t treat the claimant during the time period (as
long as they have the medical records available for that time period that
they can review). h.
If the doctor affirms these claims, you are home free. If they have
any doubts about the claims, get them to quantify exactly how severe and
debilitating the impairments are. Also,
it is good to have the doctor reference their medical notes and charts in
writing their opinion, giving the opinion more credibility and weight. I.
Ask the doctor if their patient is an accurate historian, or
whether they exaggerate their symptoms. j.
Ask if the patient is following the prescribed medicinal or other
treatment regimen. k.
If you speak with a non-physician, make sure you have them include
in the letter (if this is the case) that they work in conjunction with a
doctor or psychologist or part of an interdisciplinary team.
If they can specifically describe how the doctor or psychologist is
involved in the care, treatment or diagnosis of the patient, all the
better.
If you are happy with the source’s answers, repeat your notes
back to the source and ask them to write a letter to you reflecting those
notes. Some practitioners
write a letter to the doctor reflecting their conversation with the doctor
and asking the doctor to sign it, indicating that the letter reflects
their opinion. However, a
letter from the doctor in his own words, on his own stationary is a much
more powerful statement than a lawyer’s letter with a doctor’s check
mark at the bottom of the letter.
B. Other Witnesses
Friends,
family members, and former employers make up the pool of potential
witnesses. Witnesses can
testify live or submit letters describing their personal observations of
the claimant’s impairments and physical and mental decline. See Merrill
ex. rel. Merrill v. Apfel, 224 F.3d 1083 (9th Cir.
2000)(“[t]his Court has held that an ALJ, in determining a claimant's
disability, must give full consideration to the testimony of friends and
family members”), citing Dodrill v. Shalala, 12 F.3d 915, 919
(9th Cir.1993).
The Ninth Circuit found that a claimant met the listings based upon
the written testimony of witnesses who were familiar with
plaintiff’s condition. Schneider
v. Commissioner, 223 F.3d 968 (9th Cir.
2000). The holdings from Dodrill,
Merrill and Schneider support the following premises:
1. Written testimony from a friend or relative should be given as
much weight as live testimony (though here the law and the reality at the
hearing may not intersect exactly). Note
that written testimony will not be subject to cross examination by the ALJ;
2. Consistent with Merrill, the testimony of a mother
concerning her child can trump medical opinions;
3. The ALJ cannot
reject lay opinions based solely on the reason that the witness knows the
claimant or is related to them. The
rejection must be germane to the testimony, not the witness.
4. The ALJ must give specific and legitimate reasons for rejecting
the testimony of a lay witness.
5. In the case of a disease such as chronic fatigue syndrome or
fibromyalgia, where there is little or no objective evidence to
substantiate the impairment, the testimony of lay witnesses should be
sought to fill in the record as to the severity of the impairment and the
credibility of the claimant. See SSR 99-2p.
In practical terms, how do these cases and rules translate into
your use of other witnesses at hearings?
As an advocate, you have two goals at the hearing.
The first goal is to have the ALJ issue a favorable decision.
The second goal is to create a record for appeal.
The second goal and first goal sometimes conflict.
Although live testimony is usually more convincing and forceful
than written testimony, you bear the risk of having witnesses who will
testify in an inconsistent manner with your client or each other.
You bear the risk of a cross examination that destroys not only the
witnesses’ testimony but your client’s as well. In other words, the
more variables you introduce at a hearing, the greater the chance of
something going wrong. You can
count on it.[15]
The bottom line is: know your ALJs, what convinces them, and what
procedures they use with other witnesses, and with that in mind weigh the
pros and cons of having live witnesses.
Testimony by letter is allowed in this informal hearing and must be
considered. VII. The Hearing
A. Opening Statements
Opening
statements have a variety of purposes.
There are various schools of thought as to whether to tender an
opening statement and/or a pre-hearing memorandum.
If you suspect that the ALJ is planning to deny your client
benefits, you probably do not want to tip your hand as to the legal issues
that you may raise later in an appeal brief.
That said, be sure to raise all the issues that can only be decided
at the hearing. You might
waive them if they are not raised at the hearing. See Meanel v. Apfel,
172 F.3d 1111 (9th Cir. 1999).
Depending upon the ALJ, the opening statement is a way of letting
the ALJ know what you believe are the relevant issues in the case and what
evidence in the file supports your client’s position that he/she is
disabled. There is also
another less obvious reason for an opening statement.
The opening statement can be directed (indirectly) at the medical
or vocational expert in noting to them what you expect the medical expert
to say. The ME or VE may have
passed over some key piece of evidence and your opening is a way of
informing them of that evidence or a listing that you think the client
met, which did not occur to them in their study of the case.
An opening statement can be used to tie all of the facts together.
Show the consistencies between psychological reports, even ones
that on their face are unfavorable to your client.
Also, noting the client’s work record is important with some ALJs
who give more credence to someone who has a long and regular work history.
The reverse can be argued for someone who has never been able to
work consistently due to a longstanding disorder.
If you elect to present an opening statement, make it short and to
the point.
B. Client Testimony
Depending upon
the ALJ, you may get to question your client first, or be allowed to do a
follow-up to the ALJ’s examination of your client.
If you are doing a follow-up be sure to clarify any ambiguities or
inconsistencies in the record. Also,
make sure that at the minimum you elicit testimony from your client about
her specific impairments, the severity of the impairment, and how
regularly those impairments or limitations occur.
Later, you should utilize this part of the client’s testimony in
formulating a hypothetical to the Vocational Expert (VE) during cross
examination.
I have been at hearings where the ALJ cites a fact that was either
not in evidence or was in some other way inaccurate in posing a question
to my client. The question is
thus a trick question. At
times, I have objected to the question as presenting facts that are not in
evidence in support of a question. It
is a delicate objection as you are basically telling the ALJ that she is
misquoting the record (which is exactly what is happening).
I try to have the exact page in front of me, and as I object I read
the complete statement showing that the question is misleading.
Warn your client before hand if she is going to appear in front of
an ALJ who has this bad habit.
C. Cross examination of
Medical Experts
In some
hearings, the ALJ will have a medical expert present to help clarify the
record and give an opinion as to the severity of the claimant’s
impairment and how the impairment affects their ability to perform basic
work activities.
In deciding how and if you should cross examine a medical
witness, be careful you do not give the witness an opportunity to further
substantiate an adverse opinion. A
question such as, “Doctor, please point out the documents in the record
that substantiate your view that my client can work” (said with a smirk
on your face), is especially dangerous.
The smirk will rapidly disappear when the doctor points to the
documents. Another self
defeating question may be, “Doctor, have you considered the opinion of
the treating doctor in formulating your adverse opinion?”
The answer “yes,” does not help your client’s case.
Cross examination can be helpful if you are sure that the medical
expert missed something in the record.
In that case a question should be phrased as follows: Doctor,
you based your opinion that my client can work on the following opinions
and documents [list those documents]. Would
it change your opinion if there was evidence that [paraphrase
the evidence you believe the doctor missed].
If the doctor says no, don’t go any further.
This is an argument for appeal.
The bottom line for cross examination of medical experts’
functional opinions is that it is a dangerous row to hoe, fraught with
pitfalls.
With that warning in mind, cross examination can also be very
fruitful in tearing holes in an adverse opinion or developing an
additional limitation that could later help you establishing disability
coupled to the VE’s testimony. Cross examination can also come in handy
in establishing medical equivalence. Equivalence,
in many cases, is not considered by the doctor in her testimony as to
whether a client met, equaled, or the combination of the client’s
impairments equaled the listings. See
SSR 83-19.
1. The “Moderate”
Limitation
In the area of mental health, agency psychologists often give
testimony as to the severity of the claimant’s mental health under the
“B” criteria of the Psychiatric Review Technique.
This type of testimony is usually a combination of education,
guessing and voodoo, especially considering the medical expert has never
seen the claimant (except at the hearing) and can only go by what the
medical records show. Many
times, the medical expert will take some sort of average to determine
whether a claimant has mild, moderate, marked, or extreme impairments in
any given area without stating that is what they did.
Cross examination can reveal that methodology.
If you can get a doctor to admit that at times your client has
marked impairments (or even have them admit that at times their
impairments are more than moderate) and at other times they are mild, and
he averaged those impairments to get a “moderate” impairment, you are
on your way to a win. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00 C
1(where the Administration defines the term “marked” as serious
difficulty in performing only one activity among many in a particular
category). You can use this
definition in constructing your cross examination.
Below is an example of questions that can be posed to psychologists
or psychiatrists in cross examination on the subject of “moderate”
limitations.
a. Moderate as an Average of the Claimant’s Severity of
Symptoms.
Advocate: Doctor, you concluded that my client has a moderate
impairment in the ability to concentrate and stay on task is that correct?
Doctor: Yes.
Advocate: Doctor, is it true, generally speaking, that people who
suffer from mental diseases suffer from symptoms that vary in severity?
Doctor: Yes.
Advocate: And isn’t it true doctor that people who suffer from
this mental disease can have symptoms that vary during the day---and from
day to day as well?
Doctor: Yes.
Advocate: Isn’t it true that the claimant who has this disease,
like other people who suffer from this disease, has symptoms that vary in
intensity?
Doctor: His symptoms vary some.
Advocate: (Here if you are
experiencing a difficult ME, point out varying GAF scores, and varying
reports, which you will inevitably find in practically any psychological
record).
So Doctor, would it be accurate to say that when you state that the
claimant’s limitations are moderate, you are actually giving us an
average of the severity of her symptoms?
(Difficult) Doctor: It is an average, but it doesn’t vary much
from moderate.
Advocate: But her symptoms do vary, don’t they doctor.
Doctor: Yes they do.
Advocate: And there are times when her symptoms are more than
moderate, correct?
Doctor: Yes they are.
Advocate: And given the nature of her disease, those variations
could happen daily, correct?
Doctor: It looks like it happens more monthly than daily.
Advocate: And when variations happen, how long do they last?
Doctor: Probably a few days.
From this cross examination, you have established that your
client’s limitations in their ability to concentrate and stay on task
are greater than moderate for a few days.
Although the term “marked” or “moderate” is not defined in
20 CFR Pt. 404, Supbt P. App. 1, Listing 12.00, those terms are defined in
the section of the regulations entitled “functional equivalence for
children.” See 20 CCF
416.926a(e). In this section,
“marked” is defined as “more than moderate but less than extreme.”
Thus, if you get a doctor to say that your claimant’s symptoms
are “more than moderate” at times, you have won half the battle. b. Moderate as an
Indicator that the Claimant Can do Some Activities but not Others.
The mental health listings 12.00C1 and C2 and C3 are also
instructive for composing questions for cross-examination of psychologists
or psychiatrists.
12.00C1 provides: We
do not define “marked” by a specific number of different activities of
daily living in which functioning is impaired, but by the nature and
overall degree of interference with functioning. For example, if you do a
wide range of activities of daily living, we may still find that you have
a marked limitation in your daily activities if you have a serious
difficulty performing them without direct supervision, or in a suitable
manner, or on a consistent basis, or without undue interruptions or
distractions.
Noting the above definition and parameters of the term
“marked,” you can structure your cross of the Medical Expert
(“ME”) by asking them to rate each activity of daily living
separately, e.g. cleaning, shopping, cooking, taking public
transportation, paying bills, maintaining a residence, caring
appropriately for your grooming and hygiene, using telephones and
directories, and using a post office.
You should ask the ME if the claimant has difficulties with any of
these activities.[16]
On each of these activities ask the ME if the client can do them without
direct supervision, on a consistent, useful, routine basis, and without
undue interruptions or distractions. 12.00C1.
Most of the time, an ME will testify that the claimant has a
moderate limitation because the claimant could do some of the above listed
activities pretty well, but had problems with others.
In other words, an assessment of “moderate” in this case is
statutorily incorrect. See
also Listings 12.00C2 and C3 for limitations in social functioning and
concentration, persistence and pace.
c. “Moderate” as the Top Line Indicator
There are some MEs who believe that no one other than a claimant
who has to be institutionalized exhibits marked mental disorder
limitations.[17]
If you have an ME who insists on giving moderate limitations for a
client, despite their very
severe mental condition, ask the ME to describe a hypothetical person with
the same disease and with marked limitations.
Then ask them what that person would look like if they had extreme
limitations. You may be able
to show that their standard is completely out of line with the regulatory
scheme.
d. “Moderate” as a Lazy Way of Avoiding Quantifying the
Disease.
Sometimes MEs will use the term “moderate” as a lazy way of
avoiding quantifying an illness. A
claimant may have had a number of suicide attempts in the past year, but
in between she has done relatively okay.
Nonetheless, this hypothetical claimant tried to kill herself three
times, and during the period of time of the suicide attempts she would not
have been able to work.
Thus, the question to the ME would be:
Advocate: Doctor, should I assume that when you testify that my
client has moderate limitations in social functioning, you are not
including the three times she tried to kill herself?
Doctor: That is correct. It
appears that the vast majority of the time, she functions fairly well,
other than those few times she decompensated.
Advocate: And during those times she attempted suicide, would it be
fair to say that her conditions reached the marked or extreme level for
about one week?
Doctor: She was extreme for one day, and then marked for a few days
following that while she was confined to the hospital.
Through this cross-examination you have established a question
regarding your client’s ability to sustain employment on a long-term
basis — which should serve as a basis for your cross-examination to the
VE.
When appropriate, get the doctor to quantify her opinion in terms
of time frames and the effect the limitation has on the claimant’s daily
functioning.
e. Moderate as a
Limitation Without the Inclusion of Physical
Symptoms.
Advocate: Now, isn’t it true that the opinion you give today
regarding the limitations of my client are only based upon psychological
symptoms?
Doctor: Yes.
Advocate: And isn’t it true that pain and fatigue can limit
one’s ability to concentrate and persist on task?
Doctor: Yes.
Advocate: So when you state that my client’s ability to
concentrate is limited to a moderate degree, isn’t it true that you did
not include pain and fatigue as part of that limitation?
Doctor: Yes.
Red Flag: Don’t go any
further with this line of questioning! For
example, if you now ask the ME
how much more limited your client’s ability to concentrate will be given
her pain and fatigue, you might get an answer you don’t want.
This is an example of one of the prime rules of cross-examination. Stop
when you are ahead!
D.
Pain and Fatigue
The Cotton test is key to proper cross-examination of a
medical doctor concerning how pain and fatigue affect someone’s ability
to, concentrate, stand, walk, and lift; and their need to take rest breaks
from sitting, standing, or doing any physical activity.
The Cotton test imposes only two requirements on the
claimant: (1) she must produce objective medical evidence of an impairment
or impairments; and (2) she must show that the impairment or combination
of impairments could reasonably be
expected to (not that it did in fact) produce some degree of
symptom.” Smolen v.
Chater, 80 F.3d 1273, 1282 (9th Cir.1996) citing Cotton v. Bowen,
799 F.2d 1403, 1407-1408 (9th Cir. 1986).
The claimant does not need to show that her impairment could
reasonably be expected to cause the severity of the symptom she has
alleged; she need only show that it reasonably could have caused some
degree of the symptom. Id.
With that test in mind, cross-examination of a doctor might look
like this:
Advocate: Doctor, I assume you are familiar with the methodology of
diagnosis, correct?
Doctor: Yes.
Advocate: Isn’t it true that there are three components to a
diagnosis: 1) the patient’s complaints; 2) the patient’s medical
history; and 3) the results of any medical, laboratory testing, physical
examinations and clinical observations?
Doctor: I suppose you could group it that way.
Advocate: And it appears from the record that my client has been
diagnosed with musculo-skeletal disorder and myofascial pain syndrome,
correct?
Doctor: Yes
Advocate: Can those disorders produce the type of symptom my client
complains of, e.g., pain in the lower back, etc.
Please note doctor that I am not asking you if these
conditions cause the severity of pain that my client complains of.
I only ask you if these conditions can cause the type of symptom
claimed.
Doctor: Yes, these diseases can cause pain.
You now have established all you need to meet the Cotton
criteria. The ALJ must then
proceed to assess the severity of your client’s complaints based upon
the factors set forth in SSR 96-7p.
Unless you really know your stuff regarding the diagnosis,
progression and medical treatment of a particular disease, you are asking
for trouble if you try to get into an academic fight with a medical
doctor. You will lose that
one. Also, if the diagnosis is
a “probable or possible” diagnosis, ask the doctor if the treating
physicians have any doubt that the claimant is suffering from pain,
fatigue or other symptoms of record.
Again, remember to follow the age-old cross-examination adage —
do not question an ME unless you know how they will respond.
In their direct testimony, if a doctor has testified to certain
limitations, but has not given any medical reason or justification for his
opinion, you might decide to leave things alone.[18]
On cross-examination, you might inadvertently give the ME a chance
to explain and support their prior testimony.
That could sink your client’s chance for a remand, if that is the
only available option for them.
E. Sustainability
MEs
are sometimes asked at hearings to give their opinion as to the
“residual physical functional capacity” of the claimant.
See Form SSA-4734-U8. A
doctor who has never seen the claimant in a professional setting is asked
to give their opinion based solely upon the medical record as to how much
the claimant can lift during the course of an eight hour day; how much
they can sit, stand and walk, how much they can push and pull, how much
they can climb, balance, stoop, kneel, crouch, and crawl; how much they
can reach, handle, finger and feel; and whether they have environmental
limitations, communication limitations and visual limitations.
The answers provided by MEs in this regard are usually based upon
minimal evidence and mostly their “feel” for how severe the
claimant’s symptoms and impairments are.
Cross-examination of an ME in this area should consist of pressing
the ME for the medical and objective[19]
basis for their particular assessments and limitations.
If there was a physical capacity evaluation done, it is important
to ask if there was a follow-up to the examination.
For example:
Advocate: Isn’t it true doctor that activities that aggravate a
medical condition may cause pain and symptoms that might either be mild on
the same day and then elevate in intensity the following day?
Doctor: It could.
Advocate: Was there a follow-up done by this examining doctor (or
physical therapist) with the claimant regarding her condition the
following day?
Doctor: No, there was no followup.
Advocate: So, isn’t it true doctor that we really do not know how
the activities of sitting, standing and lifting that she participated in
affected her the next day?
Doctor: Correct.
F. Other Tips for Dealing
With MEs
MEs
are not allowed to comment on non-medical matters nor draw a conclusion as
to whether a person is disabled, even if asked to do so.
See SSA Medical Expert Handbook.
The ME is not allowed to question the claimant, unless the advocate
agrees to the questioning.[20]
1. Conflicts of Interest
20 CFR § 404.1519q spells out which medical doctors cannot be used
for testimony at a hearing: All
implications of possible conflict of interest between medical or
psychological consultants and their medical or psychological practices
will be avoided. Such
consultants are not only those physicians and psychologists who work for
us directly but are also those who do review and adjudication work in the
State agencies. Physicians and
psychologists who work for us directly as employees or under contract will
not work concurrently for a State agency.
Physicians and psychologists who do review work for us will not
perform consultative examinations for us without our prior approval.
In such situations, the physician or psychologist will disassociate
himself or herself from further involvement in the case and will not
participate in the evaluation, decision, or appeal actions.
In addition, neither they, nor any member of their families, will
acquire or maintain, either directly or indirectly, any financial interest
in a medical partnership, corporation, or similar relationship in which
consultative examinations are provided.
Sometimes physicians and psychologists who do review work for us
will have prior knowledge of a case; for
example, when the claimant was a patient.
Where this is so, the physician or psychologist will not
participate in the review or determination of the case.
This does not preclude the physician or psychologist from
submitting medical evidence based on treatment or examination of the
claimant.
The statute as written, particularly the language “all
implications of possible conflict of interest” is very broad and can be
interpreted in that manner. See Bergstrad v. Commissioner, 967
F.Supp. 1195 (D. Or 1997) holding that Dr. Pati’s testimony at the
hearing was a conflict of interest because he had worked for DDS earlier
and given a prior opinion as to the claimant’s mental impairments.
404.1519q can be used as a basis to disqualify a medical expert in
a remand hearing who has also testified at the initial hearing as well.
404.1919q can also be used to disqualify a medical expert that does
consultative examinations for DDS from testifying at hearings.
G. Cross-Examination of
Vocational Experts
1. The Primer
If you do nothing else in your cross-examination of the Vocational
Expert (“VE”) you should do the following:
a) have the VE state the DOT (Dictionary of Occupational Titles)
numbers of the claimant’s past relevant work (as testified to by the VE)
and proposed Step 5 jobs that the VE states the claimant can perform,
given the ALJ’s hypothetical. I
guarantee that you would be surprised how many times the VE presents a job
whose characteristics and job needs do not fit the ALJ’s hypothetical
limitations.
b) state each of the claimant’s limitations separately as
testified to by the claimant AND as submitted by the claimant’s treating
doctor. Ask the VE whether
each of these limitations by themselves would prevent your client
from working full-time at the claimant’s past relevant work and/or the
jobs proposed by the VE. Ask
the VE whether each of these limitations would prevent your client from
sustaining a full-time job (which is different from working at a part-time
job).[21]
Having the VE state the DOT numbers of the occupations that the VE
testified meets the ALJ’s hypothetical sets up the record for potential
reversible error on appeal.
Having the VE testify as to the effect of each of the claimant’s
limitations of her ability to work has a twofold effect.
If a subsequent appellate court finds that 1) the ALJ did not give
sufficient reasons for rejecting a doctor’s opinion or the claimant’s
complaints; 2) those limitations were propounded to the VE; and 3) the VE
testified that given those limitations the claimant could not do any of
the claimant’s past relevant work or the jobs proposed by the VE — you
have made a complete record for payment of benefits at the Federal Court
level of appeal. See
Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996); and
see Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 1999) (where the
court remanded for further
proceedings because the VE had not been given a complete hypothetical with
all of the limitations of the claimant).
Second, the ALJ may not include a certain limitation in his
hypothetical to the VE, but, later in his written decision, the AlJ may
find that the claimant was limited in that regard. At the hearing, if you
used that limitation in your hypothetical to the VE and the VE testified
that given that limitation, your client could not work, then you are home
free. You have a complete
record that will support a court order for paid benefits.
2.
Quantify the VE’s Testimony/Response to the ALJ’s Hypothetical
At step five,
the burden is on the Administration to prove that given the claimant’s
age, education, past relevant work and limitations, there are jobs in the
national economy that the claimant can perform. The Administration meets
this burden usually by having the ALJ propose certain limitations in a
hypothetical to the VE and asking the VE if anyone with these limitations
could do any work that is available in significant numbers in the national
and local economy.
Cross-examination of the VE can yield a gold-mine in terms of
appeal. First, make sure that
you have the VE describe the jobs in terms of what is actually done on the
job. Make sure you understand
completely what the requirements of the job are.
For example, how much is the use of the claimant’s hands required
for the job, how much interaction with the public, supervisors and
co-workers is necessary for the job?[22]
Many times, in testifying to the particulars of a job, the VE will stray
from the description in the DOT.[23]
If that happens, the VE’s testimony may be a basis for
eliminating the job as one that the Administration can base its decision
on.
3.
Stress
Many clients have limitations in the ability to handle stress.
As any VE will testify, stress is subjective.[24]
VEs will testify that deadlines and production expectations will
cause stress. Many will
testify that unskilled jobs are less stressful.
But how true is that? If
you place a highly skilled claimant in an unskilled job, the stress of
doing something repetitive day in and day out might be extremely high.
Also, VEs regularly testify that jobs such as parking attendant or
surveillance system monitor are low stress jobs, because most of the time
these employees do not do much. However,
upon questioning, the VEs will admit that in peak hours or when the system
monitor sees a culprit, the stress levels raise considerably.
Again, advocates are encouraged to thoroughly explore and question
the VEs regarding the occupational requirements of the jobs they have
proposed, to make sure that they actually fit the hypothetical proposed by
the ALJ. At times, after
intense cross-examination, VEs will admit that the hypothetical claimant
could do the job for a little while, but probably could not keep it over
time. This is particularly
true for claimants who have occasional bad days, whether from mental or
physical problems. In this
case, your cross-examination has paid its dividend.
4. Transferable Skills
Transferable
skills come into play in two situations: 1) where there is a question
under the grids for claimants who are fifty and over; and 2) where the VE
responds to the ALJ’s hypothetical and proposes jobs which are skilled
or semi-skilled. 20 C.F.R.
Part 404, Subpart P, Appendix 2 (“the grids”). In that case, the
claimant must have acquired skills in his past relevant work that can be
transferred to the proposed jobs. That
requirement is contained in the standard ALJ’s introduction to a
hypothetical: “considering the claimant’s age, education and past
relevant work, consider the following hypothetical...”
a. The Difference
Between Acquired Skills and Transferable
Skills.
Acquired
skills are skills that the claimant learned on the job.
Transferable skills are acquired skills that the claimant can take
and use at other jobs, given her impairments.
In other words, an
impairment can effectively invalidate an acquired skill making it
non-transferable. For example,
if you have acquired a skill using your hands, and you have been inflicted
with severe arthritis that cripples your use of the hands, your acquired
skills involving your hands are non-transferable.
b.
Skills and Traits
SSR
82-41 provides: The
regulations definition of semiskilled work in regulations sections
404.1568(b) and 416.968(b) states that semiskilled jobs "may require
alertness and close attention ... coordination and dexterity ... as when
hands or feet must be moved quickly to do repetitive tasks."
These descriptive terms are not intended, however, to illustrate
types of skills, in and of themselves.
The terms describe worker traits (aptitudes or abilities) rather
than acquired work skills.
Skills refer to experience and demonstrated proficiency with work
activities in particular tasks or jobs.
In evaluating the skill level of PRW or potential occupations, work
activities are the determining factors.
Worker traits to be relevant must have been used in connection with
a work activity. Thus, in the
regulations, the trait of alertness is connected with the work activities
of close attention to watching machine processes, inspecting, testing,
tending or guarding; and the traits of coordination and dexterity with the
use of hands or feet for the rapid performance of repetitive work tasks.
It is the acquired capacity to perform the work activities with
facility (rather than the traits themselves) that gives rise to
potentially transferable skills.
VEs mistake traits for skills.
For instance people skills learned at a job such as cashiering are
probably more traits than skills. If
the same “skills” were learned as a salesperson, the people skill
would then probably qualify as a skill.
Further, you cannot transfer skills from a job with a lower
specific vocational preparation (SVP) to a higher SVP. Besides asking for
DOT numbers from the VE, ask for SVP numbers and the general reasoning
level, as some jobs which may have a low SVP have a higher general
reasoning level requirement, making it doubtful that they are unskilled
jobs or jobs that would accomodate people who are semi-illiterate.
5. Sit-Stand Option
ALJs
at times add the sit/stand option to their hypotheticals.
The option can be measured at-will or it can for a specific period
of time, as in every thirty minutes. For
the latter, a sit/stand option that can only be used every thirty minutes
or any other period of time is not realistic given the nature of pain.
Usually claimants who have to alternate sitting and standing do so
whenever the pain in their bodies dictates the need to change positions.
This need is not like clockwork and, in fact, you can question VEs
about the nature of pain on the job and how the effects of pain are
unpredictable.
As far as alternating sitting and standing, many claimants who have
this need do not suddenly jump up and stand or change to a sitting
position in an instant. They
move slowly and have to stop what they are doing to accomplish the change
in position. Many VEs will
propose the position of parking lot ticket taker as a job with a sit/stand
option. This job can be
defeated by the following questions:
Advocate: Isn’t it true that parking lot attendants have periods
of time when there is not much traffic?
VE: True.
Advocate: And other periods of time where the cars are lined up
waiting to pay?
VE: Correct.
Advocate: And in the times that the cars are lined up, isn’t it
true that the attendant must work continuously without any breaks to keep
up with the flow?
VE: Yes.
Advocate: As a VE can I assume that you are experienced with
workers who suffer from pain on the job, correct?
VE: Yes.
Advocate: And when someone has the need for sit/stand option, there
are time when they need to get up and can’t keep working at the position
they were in, true?
VE: Yes.
Advocate: And when this happens, depending upon the person, because
they are in extreme pain they will move slowly to change position,
correct?
VE: It depends on the person, I guess.
Advocate: And when they move from sitting to standing or vice
versa, they have to stop what they are doing and then continue that
activity from a different position, correct?
VE: It seems so.
Advocate: So if they have to move from sitting to standing and they
have to stop what they are doing, couldn’t this affect their ability to
keep a parking attendant job?
VE: It depends on how long they stop working and how often it
happens.
Advocate: If they had to stop working once an hour for five minutes
each hour, for a total of 40 extra minutes per day, could they keep the
job of parking attendant?
VE: That depends upon the lot, some lots would tolerate it, and
others would not.
You have now established that some jobs would not work out and the
numbers that the VE has given the Administration are now suspect, giving
your reversible error.
6. Composite Jobs
VEs
sometimes like to take a job that is a composite job, made up of a few
different jobs, and classify the job as the lightest duty job of the
bunch. For example, if someone
works in a deli working as a retail clerk and packing and lifting boxes of
meat, the VE cannot classify the job as light based solely upon retail
sales part of the job OR classify the entire job as a few different jobs.
See Valencia v. Heckler, 751 F.2d 1082, 1087 (9th Cir.
1985).
H. Closing Remarks
Closing
remarks are usually not helpful to the client. By this time the ALJ has
made up her mind and anything you say from this point on “will be used
against you in a court of law.” In
other words, if you need to give a closing statement, that means that you
will probably lose, and if so, you do not want to reveal the theory of
your case. The ALJ can use
your closing to solidify his reasoning for his written decision.
Thus, you have to be desperate to use a closing decision.
Consider its use wisely.
I.
Submitting Evidence Post Hearing
ALJs hate it when you submit evidence post hearing.
I have at times submitted evidence from a treating doctor after I
had the treating doctor read the ALJ’s written decision so I can explain
why the ALJ’s medical conclusions were not valid.
That’s it
for now folks. I hope this guide to Social Security disability and SSI
advocacy will help win more cases for your clients.[25]
[3] Your immigration
status can effect your eligibility. The amount of resources and your
income can effect your eligibility for Title XVI benefits
(Supplemental Security Income-SSI).
In other words, there are exceptions to the “everyone is
covered” principle.
[4]As
the claimant’s advocate, you can speed up the Appeal Council process
by submitting a minimalist appeal. You can submit form HA-520 and
simply state on it that “the ALJ’s decision contains legal error
and is not based upon substantial evidence.”
More than this will inevitably slow the appeals process down.
Claimants are not required to raise and discuss specific issues
before the Appeals Council and do not waive any rights if they do not
submit written arguments in support of their appeal. See Sims v.
Apfel, 120 S.Ct. 2080 (2000). My position is that the minimalist
route is the best route to take, as the Appeals Council normally does
not appear to seriously consider written argument, and when it
reverses decisions, it does so on its own volition without any
prodding (other than in the case of a request to reopen a dismissal of
a case).
[5]
Leading questions can be a real bone of contention in a hearing
depending upon the severity of the leading and the individual ALJ.
Within the informal context of the hearing, leading questions
are allowed. However, the
more leading you do, the less weight the ALJ and appellate courts will
likely assign to your client’s testimony.
With mentally ill clients, clients having borderline IQs,
uneducated clients and very nervous clients (which most of them are),
a certain amount of leading is necessary because they do not have the
ability at the day of reckoning to recall, state and present the
necessary facts. At those
times you need to be an active advocate to assist your client in
giving their very best and complete presentation.
[6]These
questions and your client’s responses serve as a basis for your
client’s testimony at the hearing.
[7] This is more the
exception than the rule. In fact it appears to be tabulated at about
one in one thousand claimants who are committing welfare fraud within
the Social Security System. Nonetheless,
some bureaucrats appear to believe that forming social security fraud
squads will be worth the cost in money and fear created in legitimate
applicants so that they can catch the small number of “fakers.”
[8] See Willis v.
Callahan, 979 F.Supp. 1299 (D.Or. 1997) (a claimant only has to
prove that they cannot work full time in order to qualify for social
security benefits unless their past relevant work was part-time and it
reached the level of substantial gainful activity).
[9]You
usually do not want to hear your client answer “I think I would get
bored doing small products assembly.”
Being “bored” by itself is not a recognized medically
determinable impairment. However,
keep in mind that some mentally ill people by nature cannot properly
express exactly what is wrong with them.
Do not initially accept an answer such as boredom.
Through focused questioning explore why your client is not able
to fulfill the expectations, duties and responsibilities inherent in
performing and sustaining full time work.
[10]I
recommend giving the client a copy of the form they initially filled
out for DDS to review and decide if any of their answers and/or
limitations have changed since that time.
If so, have them explain the differences to you prior to the
hearing.
[11]Again,
I am not implying that you should tell someone what to write.
But without guidance you might get an opinion from a friend of
the claimant stating “in my opinion my friend is disabled,” which
is worthless. However, a
letter stating that from personal observations the writer has seen the
claimant have problems picking up objects, or the writer has seen the
claimant sleeping two hours during the day, or the writer has seen the
claimant wincing and moaning as they pick up a jar of pickles—can be
extremely helpful in developing the record.
With diseases like chronic fatigue syndrome and fibromyalgia
these third hand observations are particularly helpful in establishing
the severity of symptoms. See
SSR 99-2p. [12]
Regulations promulgated by the Commissioner under the mental listings
12.00D2 spell out the need for “longitudinal type evidence in
assessing the severity of a claimant’s complaints.”
The Commissioner explains that An individual’s level of functioning may vary considerably
over time, so that functioning at a specific time—regardless of
whether it is adequate or poor—may not be an accurate indicator of
the overall severity of the individual’s impairment.
[13]See
Hallex I-1-3-3, (the ALJ must “avoid initiating inquiries regarding
suspected criminal violations which are not relevant to the merits of
the case”); and see 5
U.S.C. § 552.a (the Privacy Act); and see
20 C.F.R. § 401.140, (where there is “clearly unwarranted
invasion of personal privacy”).
[14] Opinions from treating
sources are usually secured in written form. If you can afford the
services of a live doctor for a hearing, I recommend that in most
cases, especially those borderline cases or with tough ALJs, have the
doctor testify at the hearing.
[15] I still have bad
dreams about the mother who testified at a hearing that her daughter
exaggerated her testimony. So
much for the sanctity of motherhood!
[16]The
notes from counseling sessions may have descriptions of what
activities the claimant has troubles with.
[17]There
is one ME that appears regularly at the Portland OHA branch that has a
reputation for rating everyone as having moderate limitations.
I remember one client who had undergone shock treatment on a
regular basis because no other therapy or medication would work.
When the ME testified that the claimant had moderate
limitations, even the ALJ wanted to know what it would take for the ME
to testify that the claimant had marked mental health limitations–a
lobotomy?
[18]
In Holohan v. Massanari the Ninth Circuit found that the
opinion of a reviewing physician who merely checked boxes without
giving supporting explanations was insufficient to outweigh the
opinion of a treating physician who cared for Holohan over a period of
time and who provided an opinion supported by explanation and
treatment records. Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir.
2001).
[20]I am
very careful about agreeing to have the ME question my claimant,
unless I sense that the ME is doing so to support a forthcoming
medical opinion. I usually
agree with the caveat that if it turns into a cross-examination, I
have the right to object and ask for the termination of the
questioning.
[21]The
limitations stated to the VE should accurately reflect the record —
either the complaints of the claimant or the opinions of the doctors
of record. Don’t forget
to pose obvious hypotheticals such as two or more days absence a
month. I just received a
remand from the Ninth Circuit because the VE at the hearing had not
been asked if my client could work if she were absent from work two
days per month. No
limitation is so obviously limiting that you don’t need to propose
it to a VE.
[22]With
clients that have problems with social functioning, the ALJ’s will
regularly posit hypotheticals that limit the claimant to jobs that
require little team work. However,
on cross, you should be able to elicit from a VE the fact that many
unskilled jobs are done in areas with workers crowded together for
maximum efficiency. If the
VE has testified that the job can be performed with a moderate limit
in concentration, that implies that a non-disabled worker will be able
to perform the job without requiring all of their concentration to do
the job. Thus, they will
probably be prone to chit-chatting with their co-workers.
Placing a worker that has limitations in social functioning in
an environment where there is a lot of social chatter may set off some
clients and cause them to decompensate.
[23]An
ALJ may rely upon VE testimony as long as it is consistent with the
DOT unless there is persuasive evidence in the record to support the
contradiction. See Johnson
v. Shalala, 60 F.3d 1428 (9th Cir.
1995).
[24]See Lancelotta
v. Secretary of HHS, 806 F.2d 284 (1st Cir.
1986); See also SSR 85-15 for stress as experienced by mentally
impaired individuals.
Alan Graf
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