The Nuts and Bolts of Social Security Disability

THE NUTS AND BOLTS OF SOCIAL SECURITY PRACTICE

â—� Client Intake and Questionnaire - Looking for Conflicting Information in the Client's File

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â—� Claim Evaluation - Red Flags to Look out for

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â—� The Five (or Three) Steps of the Sequential Evaluation

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â—� Reopening a Prior Application - How Far Back Can You Go?

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â—� SSA/ODAR Communications (Specific Forms to Complete, SSA Response to Case Backlog)

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â—� Evaluating Physical vs. Mental Claims

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â—� Obtaining Case Supporting Documentation

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â—� Determining the Onset of Disability (Including Date Last Insured)

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â—� Proving Pain

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â—� Medical History and Treating Doctors' Opinions

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â—� Employment History

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â—� Functional Exertional and Non-Exertional Limitations

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â—� Daily Activity Diaries

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â—� Special Considerations in Child Disability Claims

I

Client Intake and Questionnaire - Looking for Conflicting Information in the Client's File

Client intake is critical. I will address that aspect of the practice first. Since you will not have the client's file at intake normally, I shall address conflicting information at the end of this section.

There are many things that you will come to know and understand at the initial intake level about your client. It is the beginning of your learning process. Rest assured that this process will inevitably end somewhere between your opening statement and when you rest your case.

After two decades of practicing disability law, the one thing I have come to learn is that clients will edit what they tell you because of their ideas about what is important and what is not. They may not talk about embarassing situations like bladder problems or forgetfulness. They may not tell you about incarcerations or being Baker Acted or involuntarily confined because of mental illness. So, as an attorney and advocate one must ask the important questions.

Your first contact with the claimant might be by the telephone, but in-person contact is invaluable. This means attorney-client contact, not just a paralegal screening.

Here is an example of what I use on my initial telephone intake. Below. It hits in a prima facie way, all the necessary preliminary issues. Be mindful especially of a client's age and education, as these issues are important in the five sequential step analysis used in the proof of your case.

SSDI / SSI INTAKE

Date ___________

Claimant's Name: ___________________________________ SSN: _________ - _______ - __________ Referral:Website: ____ Yellowpages: ____ Friend: ____ Frmr Client: ____ Other: _____

Phone #: __________________________________ Alternate Ph#: ______________________________

Address: _________________________________________________________________ ____________

E-Mail: ____________________________________ @______________________ . _____________

Age: ______ DOB: _________ Educ. .: Highest grade _____ HS grad____ GED____ College ____

English: Able to read and write English? Yes ___ No ___ Why not?_____________________

Work: Are you still working: Yes ____ No ____

if yes: gross weekly income: $ ___________________________

Unemployment: Are you presently collecting unemployment? Yes: ______No: ______

Did you work in 5 of last 10 years prior to disability "on the books"? Yes No

Have you applied for SSDI/SSI?: Yes___ No ___Stage: App Recon Hearing ____

Denial Date: ____________ Household Income: $______________________/mo

What do you consider your Most Disabling Conditions?: ________________________________________, ____________________________________________

_________________________________________, ___________________________________________

What kind of work have you done in the last 15 years before filing for SSDI/SSI:

_________________________________________, ______________________________________________

To what degree did your disability cause you to leave work?

_________________________________________________________________________________________

In your own words, why do you think you cannot work a full-time job uninterruptedly for an 8 hours a day five days a week and have fewer than (2) two absences per month? (Example: ticket seller at movie theatre, gate guard, parking lot attendant or surveilance system monitor)._______________________________

_________________________________________________________________________________________

Has a doctor said to apply for SSDI or you can't work a 40 hr. week? Yes _____ No ______

If yes, which physician said so and why?

Currently under a physician's care: None_____ Yes_____ : Medical_____ Psych_____

Which ones?: Dr. , Dr.

? Dr. , DR. ,

Ever Collect Unemployment, Incarcerated, Baker Acted, or lost a job for abuse of drugs or ETOH/DUI? Yes No

If yes, when was the last time? How long?: ___

Do medications affect your ability to work? Yes ____ No ____

If so How?: ______________________________________________

Which Ones? ______________________, ________________________, ____________________________

Conflicting evidence

Conflicting medical evidence is harmful to the claimant's case and credibility. Normally, conflicting evidence will be found in ER or treatment notes and physician's clinical assessments. Normally, one will not have these at the advent of an opening of a file, so it is imperative to read for negative information as the medical records come in and note the problems on the file. Usually, normal findings in a pain case with no objective findings are the most problematic instance. There is some truth to "Me thinks he protesteth too much" in most instances. Inclusions in notes of "WNL" within normal limits are problematic or the absence of complaints of symptoms and pain are tantamount to a finding that the claimant is not disabled due to the condition lacking severity. In cases involving low back issues, straight leg testing being normal is a pretty good indicator of lack of true symptomatology based on my own observations and can be consistent with complaints of pain that far outweigh anatomical findings.

Conflicting evidence of employment is pretty open and shut. If the claimant testifies that he is not working, but the file indicated that wages were paid, then there is a big problem, though I have had cases where employers of non-English speaking claimants continued to issue checks to claimants and forge the claimant's signatures so that the income would not be traceable to an employer who was behind on both his alimony and child support payments.

II

â—� Claim Evaluation - Red Flags to Look out for

Certain aspects of a client's case will send up red flags. These can be deadly to your case. The most common red flag is drug and alcohol abuse in psychiatric cases. If ETOH abuse of drug abuse is a predominant cause of not being able to work, then you can bet on obtaining no benefits for your client. This is especially true where one has a bona fide mental illness case, but the claimant's use of drugs or alcohol causes her to decompensate and getting Baker Acted. Drug and Alcohol abuse can be fatal to a mental illness case, especially for younger individuals.

Young age is a red flag. Suffice it to say that the Grids are constructed around favorable disability status for those claimants who are older, with little education and with limited exertional capacities. Conversely, the younger an individual is, the greater the presumption is that this individual can do medium, light or sedentary work that requires little training.

SSI, is a red flag. An elderly senior ALJ once told me "show me a good earning history and I'll show you a claimant who probably cannot work". I really find a lot of truth in this, but this is not to dismiss SSI cases entirely. Cases where a person has suffered from a mental impairment like low IQ or from juvenile onset of Bipolar Disorder or Schizophrenia may inevitably be good cases, but SSI is a red flag of sorts as it denotes a marginality of earnings and/or capacity that may not be so great that the claim can be proved reasonably.

Age/Youth is a red flag. The red flag should go up where one has a younger individual who is not working. Typically, this may be a flag for ETOH or drug abuse. It may also be a red flag for mental retardation, or issues involving mental processing. In these sorts of cases, it is imperative that results of IQ tests be obtained from the claimant's schools or other testing sites. In this way, one might prove a Medical Listing, or when combined with other afflictions, a Grid case.

Lack of medical care is a red flag. Excluding those circumstances where medical care and treatment might not be available due to poverty (especially in rural areas), lack of medical care is fatal to a SSDI/SSI case. It is axiomatic that sick people go see doctors, or at least go to emergency rooms. Additionally, severely mentally ill people see psychiatrists, not their general practitioners where there are psychiatrists available.

Incarceration is a red flag. You won't obtain benefits for periods of incarceration of a year or more as a general rule. Besides that, there is the lack of credibility that having adjudication as a felon brings. Medical records from jails and prisons have a tendency to paint a rosy psychological picture of the inmate or patient while incarcerated: not helpful to case. There is also a realistic presumption that someone in jail is more likely than not to be trying to scam the system or to get something for nothing. It is sad, but that is how it is when one is trying to adjudicate a claim.

Raising young children in the household: Classical thought is that if the claimant is a younger individual and can do this, then the claimant is capable of some light/sedentary work thereby creating a defacto heavier burden of proof than ordinarily expected.

Still Working is a red flag. If a client/claimant can and does work he risks earning SGA wages that will negate entitlement to SSDI/SSI benefits. A history of working off the books also raises a red flag as it raises the specter of a non-tax-paying law abiding citizenry who may just as soon work off the books AND collect SSI or SSDI.

Receiving Unemployment Compensation is a red flag. Even though the requirements for SSDI/SSI are different from the requirements for collecting unemployment, the ALJs routinely use a claimant collecting unemployment to impeach the claimant saying "on the one hand you are telling me you cannot work, yet you are telling the people at unemployment compensation that you can". Be ready to diffuse this argument with the proper testimony.

No Claim filed: Having not yet filed a claim may be a red flag, as people who are disabled pretty much know it and get their claim filed as soon as they can.

III

â—� The Five (or Three) Steps of the Sequential Evaluation

The Statutory or Legal Framework for Considering a Social Security Disability Claim involves a three or five step process of evaluation. As a practical matter, a practitioner may not typically see a case that meets a medical listing. These cases are easy to detect and are usually picked up by the SSA early on. Further into the process, even though a claimant may meet a medical listing, the ALJ may prefer to go through the entire five step process to avoid the risk of finding that the Claimant meets a medical listing only to have the Administration send out the file for a medical evaluation to confirm his ruling. Basing a determination on vocational grounds seems to be a safer option for the ALJ. So, even though your client meets a listing, prepare to go through all five steps. If your claim is denied, then a practitioner has ample grounds for appealing to the Appeals Council. This does happen, but is a rarity based on my years of practice.

The framework that the Social Security Administration will follow is found below. It is a five-step process that consists of the following steps.

Step 1. Does the claimant presently or did her/she during period of disability earn wages of $1040 or more?

At step one, the ALJ must determine whether the claimant is engaging in SGA or substantial gainful activity (20CFR 404.1520(b) and 416.920(b)). SGA or "substantial gainful activity" is defined as work activity that is both substantial and gainful. If an individual engages in SGA, then the analysis ends there regardless of age, education or work experience. So, for example, picture Stephen Hawking, a truly physically disabled individual who cannot communicate without electronic assistance and whose life is confined to a wheelchair in his waking hours, being paid one honorarium per month of $1,500.00 to complete one math problem for which he expends an hour of his time. Simply as a consequence of his earnings, Dr. Hawking would not be "disabled" under the Social Security Act because his single honorarium of $1,500.00 would exceed the SGA earning limits. If an individual engages in SGA, that individual is not disabled regardless of how severe that individual's physical or mental impairments are and regardless of age, education, and work experience. If an individual is not engaging in SGA, the analysis proceeds to the second step.

Step 2. Is there anything medically wrong with the claimant that interferes with his/her ability to work for at least six hours per day and 40 hours per week?

At step two, the ALJ must determine whether the claimant has a medically determinable impairment that is "severe" or a combination of impairments that is "severe" (20CFR 404.1520I and 416.920I). An impairment or combination of impairments is "severe" within the meaning of the regulations if it significantly limits the individual's ability to perform basic work activities. If the claimant does not have a severe medically determinable impairment or combination of impairments, the claimant is not disabled. If the claimant has a severe impairment or combination of impairments, the analysis proceeds to the third step.

Step 3. Do any or several of the claimant's impairments meet a medical listing that will last 12 months or more?

a. At step three, the ALJ must determine whether the claimant's impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526(d), 416.925, and 416.909).

b. If the claimant's impairment or combination of impairments meets or medically equals the criteria of a listing and meets the duration requirement (20 CFR Part 404, Subpart P. Appendix 1 (20 CFR 404.1509 and 416.909), the claimant is disabled. If it does not, the analysis proceeds to the ALJ determining what the claimant's residual functional capacity, or RFC is. See, 20 CFR 404.1520(e) and 416.920(e) step number 4.

Residual Functional Capacity 20 CFR 404.1520(e), 404.1545, 416.920(e) and 416.945; SSR 96-8p define RFC or residual functional capacity as a claimant's ability to do physical and mental work activities on a sustained basis despite limitations from his impairments, considering all of the claimant's impairments that are not severe. This includes considering issues like pain, ranges of motion and obesity. At your hearing the ALJ will use the Administration's physicians' RFC evaluations, the claimant's physicians' evaluations or combination thereof along with the claimant's testimony to set forth an appropriate hypothetical for the VE, or vocational expert who will be there at your hearing. You should have framed prior to your hearing, the appropriate parts of your hypothetical (and permutations thereof) that would put the greatest limitation on your claimant's RFC.

Step 4. What is the claimant able or not able to do, given his/her mental and physical limitations? .

Next, the ALJ must determine at step four whether the claimant has the residual functional capacity to perform the requirements of the claimant's past relevant work (20 CFR 404.1520(f) and 416.920(f)).

In other words, can he/she do his/her PRW or past relevant work. Essentially these are the claimant's past jobs that he or she has had in the last 15 years prior to the alleged date of disability onset. Past jobs go back 15 years from the onset date and only full time jobs that the claimant did long enough (3 months or more) to be able to master them. A simple job generally does not take long to master (a few months), while a complex one will take longer.

If the claimant has the residual functional capacity to do the claimant's past relevant work, the claimant is not disabled. If the claimant is unable to do any past relevant work or does not have any past relevant work, the analysis proceeds to the fifth and last step.

Step 5. In light of the residual functional capacity determination described above, since the claimant cannot do his/her past work the ALJ must consider, what jobs the claimant can still perform.

At the last step of the sequential evaluation process (20CFR 404.1520(g) and 416.920(g)), the ALJ must determine whether the claimant can do any other work considering his residual functional capacity, age, education, and work experience. If the claimant is able to do other work, he is not disabled. If the claimant cannot do other work and meets the duration requirement of 12 months or more, the claimant is disabled.

At this point the burden of proof shifts ever so slightly to the SSA to prove that there are jobs in sufficient numbers in the national economy that the claimant can do based on his age, l(literacy) education and work experience and transferability of job skills so as to negate the claim.

This area of negation requires vocational expertise and the testimony of a qualified VE or "vocational expert" that will be present at your hearing. If a claimant has past relevant work in a given extertional category (light, sedentary, medium), then to get disability benefits, the claimant must not be capable of performing work in that extertional category given his/her age, education and work experience. There are definitions for physical exertional categories and they apply whenever the claimant has a physical impairment. The code of federal regulations (CFR) 20 CFR §416.967 describes these physical exertion requirements as set forth in the physical and mental impairment section below.

IV

â—� Reopening a Prior Application - How Far Back Can You Go?

Time Limits for Reopening for Good Cause

General Rule

1. Title II and XVI: Any time within 12 month period after a determination or decision.

2. Title II: 12 months to 4 years from the date of Notice of initial Determination based on Good Cause.

3. Title XVI: 12 months to 2 years from the date of Notice of initial Determination based on Good Cause.

4. After Final Hearing: Special Rules apply

Program Operations Manual System (Poms)

Effective Dates: 10/12/2011 - Present

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DI 27505.001 Conditions for Reopening a Final Determination or Decision

A. Rules for Reopening

Generally, a determination or decision may be reopened and revised only when:

• The determination or decision was incorrect when made; and

• The time limits and conditions for reopening described in DI 27505.001A.1. – DI 27505.001A.4. are met.

A determination or decision, which may have appeared to be correct based on the available evidence at the time it was made, may be reopened if it is later shown to have been incorrect (e.g., DDS discovers new and material evidence showing the field office made a failure to cooperate determination, but did not recognize the claimant has a mental impairment that prevented him or her from cooperating). Refer to New and Material Evidence (DI 27505.010B) for clarification of when new and material evidence can be used to reopen a prior determination or decision.

There are exceptions to the general rule that only incorrect determinations or decisions may be reopened and revised. See:

• Change of Ruling or Legal Precedent (Change of Position) – Operating Policy (DI 27505.020B.1.), and

• Policy – Only Incorrect Determinations Can Be Reopened and Revised (SI 04070.010C.) for when a determination or decision which was correct when made may be reopened and revised.

1. 1-Year Reopening Rule (Title II and Title XVI)

A final determination may be reopened within 1 year from the date of notice of the initial determination "for any reason." However, certain adverse reopening's and revisions cannot occur unless the medical improvement regulations permit a finding that disability has ceased or does not exist. See Policy - When the MIRS Applies (DI 28005.001D.).

Reopening within 12 months is not "automatic." A request to reopen within 12 months can be denied if there is no reason to revise the prior determination or decision.

2. 2-Year Reopening Rule (Title XVI)

A title XVI determination may be reopened within 2 years from the date of notice of the initial determination for "good cause."

3. 4-Year Reopening Rule (Title II)

A title II determination may be reopened within 4 years from the date of notice of the initial determination for "good cause." See

• Good Cause for Reopening (DI 27505.010)

• Reopening Within 4 Years (Title II and Entitlement Under Title XVIII) (GN 04010.000).

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4. "At any time" Reopening Rule

A determination may be reopened at any time as follows:

a. Title II Wholly or Partially Favorable Determination

Title II wholly or partially favorable determinations may be reopened:

• For fraud or similar fault (see Fraud or Similar Fault – Reopenings (DI 27505.015)); or

• To exclude a felony-related impairment from consideration because the claimant has been convicted of a felony (see Evaluation of Prisoner/Felon CDR Cases (DI 28065.010); Reopening and Revision after Conviction of a Felony or Reversal of Felony Conviction (DI 23501.075).

See Details

• Prior Favorable or Unfavorable Title II Determination or Decision - Felony Related Impairment (DI 27520.020)

• Unrestricted Reopening - The Determination or Decision Was Procured by Fraud or Similar Fault (GN 04020.010)

• Unrestricted Reopening - Criminal Conviction Affecting Benefit Rights — Policy Principle (GN 04020.110)

b. Title II Wholly or Partially Unfavorable Determination

Title II wholly or partially unfavorable determinations may be reopened to:

• Correct an error on the face of the evidence or clerical error, provided that the net result is more favorable to the claimant.

• Consider any excluded impairments because the claimant's felony conviction has been overturned.

c. Title XVI

Reopen only for fraud or similar fault.

Refer to Fraud or Similar Fault - Reopenings (DI 27505.015); and Fraud and Similar Fault – SSI (SI 04070.020).

5. Precluded from Reopening

When a favorable determination with error on the face of the evidence is precluded from reopening because the period for reopening has expired, process in accordance with the continuing disability review (CDR) procedures.

B. Time Limits

Time limits and other conditions for reopening allow entitled claimants to rely on a fully favorable final determination or decision, and they allow SSA to accommodate a valid reason to change a final determination or decision.

1. Computing Time Limits

Compute time limits beginning from the date of the notice of the initial determination.

2. Expiration of Time Limits

Expiration of time limits is at the end of the designated period as described in DI 27505.001A.

For additional information about computing time limits and expiration of time limits, refer to Operating Policy - Use of Notice to Count Time for Reopening (GN 04001.040B.) and Policy – How To Measure Time Limits (SI 04070.010G.).

a. Time Limit for Reopening Expires on Saturday, Sunday or Federal Holiday

Extend the period to the next full workday if the time limit for reopening expires on a Saturday, Sunday or Federal non-workday.

b. Armed Forces

Extend the period for that portion of time when the claimant is a member of the United States Armed Forces or on active duty for training, if it is favorable to the title II claimant.

3. Timely Completion of Revision

The reopening and revision should generally be completed before the applicable time limit established in Rules for Reopening (DI 27505.001A.) has elapsed. See Late Completion of Timely Investigation: Diligent Pursuit (DI 27505.005).

C. Obtaining the Date of the Notice When the Notice is Not in File

If a copy of the notice of the initial determination is not available in the official file, request the FO to obtain the information from the Online Retrieval System (ORS), or obtain the date of the notice in the following order:

1. Title II Allowance or Denial

Obtain a Master Beneficiary Record (MBR) and use the disability adjudication date. Use the last day of the month for the presumed notice date since the DSD field is a MM/YY entry. See Description of Fields - Disability Adjudication Date (DSD) (SM 00510.200C.18.).

2. Title XVI Allowance or Denial

Secure an SSIRD (SSI Record Display) per Exhibit – SSIRD Display Summary Line Data (SM 01601.400B.) which includes the NP and NOTC field data segments. These field data segments show the date of the last notice and the applicable form number.

B. Good Cause: 1. The furnishing of "New" and "Material" evidence.

2. A clerical error in the computation or recomputation of benefits under Title II and Title XVI. Or just a clerical error in a Title XVI claim.

3. The evidence that was considered in making the determination or decision clearly shows on its face that an error was made.

HALLEX: I-2-9-40.

Reopening for Good Cause

Last Update: 3/8/13 (Transmittal I-2-89)

Citations:

20 CFR § § 404.988(b), 404.989, 416.1488(b), and 416.1489

New and Material Evidence

1.

Definition

To satisfy the regulatory standard for reopening, evidence is "new and material" when:

• The evidence is not part of the claim(s) record as of the date of the ALJ decision or determination;

• The evidence is relevant, i.e., involves or is directly related to issues adjudicated in the prior decision or determination;

• The evidence relates to the period on or before the date of the decision or determination; and,

• The evidence shows that the decision or determination is contrary to the weight of the evidence.

NOTE:

The weight of the evidence is defined as the balance or preponderance of evidence. See HALLEX I-3-3-4.B.

In other words, the weight of the evidence means it is "more likely than not" that the totality of evidence, including the additional evidence, would change the action, findings, or conclusion.

2.

Effect of New and Material Evidence

• It may not always warrant a different conclusion.

• It may produce a significant change in a factor of entitlement that warrants a revision of a prior unfavorable determination or decision, but does not change the ultimate unfavorable determination or decision.

EXAMPLE:

An ALJ found that a 30 year-old claimant for disability insurance benefits was illiterate, unskilled, could no longer perform his heavy labor job due to his back impairment but had the residual functional capacity to perform light work. The ALJ issued a decision finding that the claimant was not disabled pursuant to Rule 202.16. The ALJ"s decision became final and binding when the claimant did not appeal to the Appeals Council. Two years later, the claimant requests that the ALJ reopen the hearing decision and submits evidence that establishes he was limited to sedentary work during the period at issue. Even though the claim will still be denied under Rule 201.23, if the reopening time limit criteria are met, the ALJ may reopen the prior hearing decision, issue a revised decision and provide the claimant with appeal rights.

D.

Clerical Error

A clerical error is a mathematical error, misapplication of benefit tables, etc., which resulted in an incorrect payment of a monthly benefit or an incorrect lump-sum death payment. It ordinarily occurs in the computation or recomputation of benefits.

NOTE:

Under title II, an ALJ may generally only reopen a determination or decision that is otherwise final within 4 years from the date of the notice of the initial determination. However, if a determination or decision was fully or partially unfavorable to the claimant due to a clerical error, a title II determination or decision may be reopened at any time. See 20 CFR 404.988(c)(8) and HALLEX I-2-9-60 A.8.

E.

Error on the Face of the Evidence on Which the Determination or Hearing Decision Is Based

Error on the face of the evidence is an obvious error which clearly causes an incorrect determination or decision. The following are examples of error on the face of the evidence:

• The adjudicator relied on the wrong person"s medical report or earnings record.

• In a title II only claim, onset of disability was established after the claimant last met the special earnings requirements.

• Benefits in a cessation case were terminated as of the month disability ceased, rather than being terminated as of the close of the second month following the month in which disability ceased.

• Evidence in the possession of SSA at the time the determination or decision was made clearly shows that the determination or decision was incorrect.

EXAMPLE:

While a claim was being processed, the claimant submitted a medical report to the Social Security field office which would have resulted in a different conclusion. However, the medical report was not associated with the claim file until after the determination or decision became final.

NOTE:

Under title II, an ALJ may generally only reopen a determination or decision which is otherwise final within 4 years from the date of the notice of the initial determination. However, if a determination or decision was fully or partially unfavorable to the claimant due to an error that appears on the face of the evidence that was considered when the determination or decision was made, the ALJ can reopen at any time. See 20 CFR 404.988(c)(8) and HALLEX I-2-9-60 A.8.

C. "Good Cause" and the 60 Day Rule.

In this section, I will address the initial claim and a late filing based on the enumerated bases and the re-filing of a claim. It is a good proactive to put in your initial letter to the SSA in which you include your fee agreement and 1696 form to include the language: "It claimant hereby moves to reopen all previously filed claims."

a. What if a claimant let the 60 days run on his/her appeal, can the claimant file late?

Yes. But it is not advisable to do so. One can file late only under a narrow set of exceptions. According to the Social Security Administration you can file your appeal (your Request for Reconsideration and/or Request for Hearing by an Administrative Law Judge) after 60 days if you have good cause for late filing.

In determining whether the claimant had good cause for failure to file a timely appeal request SSA considers:

a. whether circumstances impeded the claimant's efforts to pursue his/her claim;

b. whether SSA/CMS actions were confusing or misleading;

c. whether the claimant understood the requirements of the Social Security Act (the Act), resulting from amendments to the Act, other legislation, or court decisions; and

d. whether the claimant's physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) prevented him/her from filing a timely request or from understanding or knowing about the need to file a timely request for appeal.

NOTE: Good cause for late filing may apply to any person standing in the place of the claimant, like the claimant's representative or attorney.

Circumstances where good cause may exist include, but are not limited to, the following situations:

a. the claimant was seriously ill and was prevented from contacting SSA in person, in writing, or through a friend, relative, or other person;

b. there was a death or serious illness in the claimant's immediate family;

c. pertinent records were destroyed or damaged by fire or other accidental cause;

d. the claimant was actively seeking evidence to support his/her claim, and his/her search, though diligent, was not completed before the time period expired;

e. the claimant requested additional information concerning SSA's determination within the time limit. (After receiving the information, the individual has 60 days to request a reconsideration or hearing. The individual has 30 days after receipt of such information to request AC review or file a civil action);

f. the claimant was furnished confusing, incorrect, or incomplete information or was otherwise misled by a representative of SSA or CMS about his/her right to request continued benefits, reconsideration, a hearing before an Administrative Law Judge, AC review, or to begin a civil action;

g. the claimant did not understand the requirement to file timely or was not able (mentally or physically) to file timely;

h. a notice of the determination or decision was never received (e.g., SSA used incorrect address or claimant moved);

i. the claimant transmitted the appeal request to another government agency in good faith within the time limit and the request did not reach SSA until after the time period had expired;

j. the claimant thought his/her representative had filed the appeal (good cause applies to the claimant despite whether the claimant is still represented or represented by a different person);

k. unusual or unavoidable circumstances exist, which demonstrate that the claimant could not reasonably be expected to have been aware of the need to file timely, or such circumstances prevented him/her from filing timely.

V

â—� SSA/ODAR Communications (Specific Forms to Complete, SSA Response to Case Backlog)

SSA: Local Office

Communications between the Social Security Administration is often time consuming and trying at the local level. Medical records that are mailed in to the local offices are often missing from the file once it is sent to ODAR. They will not show on the exhibit list in the F section. So, make sure that you keep your records and exhibits, so once the file is available to be reviewed on line, that you compare the exhibits sent with the exhibits received. Scan and use the ERE for all evidence and medical documents that have been previously sent and do not appear on the electronic file.

ODAR

At the Office of Disability Adjudication and Review (ODAR), there is a continuing and growing backlog of cases once again. The hiring of new ALJs has helped, but it seems that the demographics of age and the burgeoning rolls of the unemployed who are 50 and over has created a wave of claimants who have filed and who need to have their claims adjudicated.

ODAR's reaction to the increased numbers and long wait times seems to be to triage the caseload into these claimants under 50 and over 55 and asking that any deserving OTR (On the Record) requests be made and accompanied with proposed findings of fact and conclusions of law using the FIT template. If you are unfamiliar with FIT, there are those to whom one may legally outsource in order to reasonably and professionally accomplish this end until one learns how to best prepare this electronic document for submission by you.

FORMS to Complete (See Appendix)

• SSA-827 Authorization to Disclose Information

• HA-520: Request For Review

• HA-501: Request For Reconsideration

• DISABILITY REPORT - APPEAL - Form SSA-3441-BK

• HA-4631 Claimant's Recent Medical Treatment

• HA-4632 Claimant's Medications

• HA-1503 Notice of Hearing

• HA-L46 Memorandum-Update

• HA-539: Substitution of Party/Death

VI

â—� Evaluating Physical vs. Mental Claims

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If Hercules suffered from severe Schizophrenia, even if he were capable of lifting great weights but could not maintain concentration due to his illness or medications so as to do simple one or two step simple repetitive tasks for more than 2/3 of an 8 hour day, he would be disabled and entitled to SSDI/SSI benefits. Mental and physical cases do differ and often overlap, in chronic pain cases, the claimant's mental condition is affected by his/her physical condition.

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• The code of federal regulations (CFR) 20 CFR §416.967 describes these physical exertion requirements as set forth below.

• Physical exertion requirements:

•

• To determine the physical exertion requirements of work in the national economy, the SSA classifies jobs as sedentary, light, medium, heavy, and very heavy. These terms have the same meaning as they have in the Dictionary of Occupational Titles, published by the Department of Labor. In making disability determinations under this subpart, we use the following definitions:

•

• (a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

•

• (b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

•

• (c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.

•

• (d) Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.

•

• (e) Very heavy work. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light, and sedentary work.

•

• Generally, but not always, in order to get disability a person, whose condition does not meet a listing must show that he/she is not capable of performing a sedentary work on a full time basis. Older people, those 50 and over, may be able to get benefits with the ability to work at light levels, depending on age, education, and work history and whether they learned any skills that could be used in other jobs (referred to as transferability of job skills).

Mental impairments limitations:

• These impairments consider a completely different set of circumstances. The CFR describes the limitations generally as follows: "A limited ability to carry out certain mental activities, such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, co-workers, and work pressures in a work setting, may reduce your ability to do past work and other work." 20 C.F.R. §404.1545I. The various limitations described in the mental residual functional capacity questionnaires address these limitations. The ability to function in the following categories is weighed: 1) activities of daily living (grooming, getting to and from work, ability to shop for food, maintain a household); 2) social functioning (ability to get along and interact with people) 3) concentration, persistence and pace (ability to pay attention to work instructions and requirements); 4) episode of decompensating (hospitalizations, times when person is unable to leave home due to mental illness). An important factor for many claimants is the ability to maintain concentration, persistence and pace, but all factors should be considered.

•

• At the last step of the sequential evaluation process (20 CRF 404.1520(g) and 416.920(g)), the ALJ must determine whether the claimant is able to do any other work considering the claimant's residual functional capacity, age, education and work experience. If the claimant is able to do other work, the claimant is not disabled. If the claimant is able to do other work and meets the duration requirement, the claimant is not disabled. Although the claimant generally continues to have the burden of proving disability at this step, a limited burden of going forward with the evidence shifts to the Social Security Administration. In order to support a finding that an individual is not disabled at this step, the Social Security Administration is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the residual functional capacity, age, education, and work experience (20 CFR 404.1512(g), 404.156I, 416.912(g), and 416.960I).

FUNCTIONAL CAPACITY EVALUATION (FCE)

PATIENT NAME: _____________________ SS# __________________________

IMPORTANT: Please complete the following items based on your clinical evaluation of the patient and other testing results. Any item that you do not believe you can answer should be marked N/A (not answerable)

1. Date of first treatment: _____________ Most recent treatment date: ______________

Frequency ________________________

2. Diagnoses: _________________________________________________________________

3. Prognosis: _________________________________________________________________

4. Has your patient's impairment lasted or can it be expected to last at least 12 months? � Yes � No

Note: for this and other questions on this form, "rarely" means 1% to 5% of an 8 hour day; "occasionally" means 6% to 33% of an 8 hour day; "frequently" means 34% to 66% of an 8 hour day.

5. In an 8 hour workday, patient can: (Circle full capacity for each activity)

TOTAL DURING ENTIRE 8 HOUR DAY

A. Stand/Walk 0-2 3 4 5 6 7 8 (hours)

B. Sit 0-2 3 4 5 6 7 8 (hours)

6. How many pounds can your patient lift and carry in a competitive work situation?

Never Rarely Occasionally Frequently

Less than 10 lbs. � � � �

10 lbs. � � � �

20 lbs. � � � �

50 lbs. � � � �

7. How often during an 8 hour working day can your patient perform the following activities?

Never Rarely Occasionally Frequently

Fingering � � � �

Grasping � � � �

Handling � � � �

Stoop (Bend) � � � �

Crouch � � � �

8. How often during a typical workday is your patient's experience of pain severe enough to interfere with

attention and concentration needed to perform even simple tasks:

� Never � Rarely � Occasionally � Frequently

9. Will patient have to elevate legs or feet above waist level for 2 or more hrs per day? � Yes � No

10. Please identify your patient's signs and symptoms: � Positive straight leg raising test

� Substance dependence � Sensory loss � Anxiety � Depression � Impaired sleep

� Muscle weakness � Reduced range of motion � Prescribed cane or other walking device

11. Describe any other issues or conditions that affect the patient's ability to work: __________________

______________________________________________________________________________________

12. On average, how often do you anticipate that your patient's impairments or treatment would cause your

patient to be absent from work?

� Never � About two days per month � About four days per month

� About one day per month � About three days per month � More than four days per month

Earliest date to which restrictions apply: ________________

Signature of Physician: __________________________ Date form completed: _________________

Print Name of Physician: ___________________________ Return to: Mike Murburg, P.A.

15501 N. Florida Ave.

Tampa, FL 33613

Tel: 813-264-5363

Fax: 813-961-6011

MENTAL RESIDUAL FUNCTIONAL CAPACITY QUESTIONNAIRE AND LISTINGS

To: Social Security Administration Re: ____________________

SS#: _

Please answer the following questions concerning your patient's impairments. Attach all relevant treatment notes and test results that have not been provided previously to the Social Security Administration.

A. 1. Frequency and length of contact:_________________________________________________________________

a. Assessment is from _______ to ____________________________

b. Specify the listing(s) (i.e., 12.02 through 12.10) under which the items below are being rated (check appropriate box to reflect the category (ies) upon which the medical disposition is based: Indicate to what degree the following functional limitations (which are found in paragraph B of listings 12.02-12.04, 12.06-12.08 and 12.10 and paragraph D of 12.05) exist as a result of the individual=s mental disorder(s).

" 1. 12.02 Organic Mental Disorders

" 2. 12.03 Schizophrenic, Paranoid and Other Psychotic Disorders

" 3. 12.04 Affective Disorders

" 4. 12.05 Mental Retardation

" 5. 12.06 Anxiety-Related Disorders

" 6. 12.07 Somatoform Disorders

" 7. 12.08 Personality Disorders

" 8. 12.09 Substance Addiction Disorders

" 9. 12.10 Autism and Other Pervasive Developmental Disorders

2. DSM-IV Multiaxial Evaluation: Axis I: ___________________________________________

Axis II: ___________________________________________

Axis III: ___________________________________________

Axis IV: ___________________________________________

Axis V: ___________________________________________

Current GAF: Highest GAF past Year _____________

3. Treatment and response:_____________________________________________________________________________ 4. a. List of prescribed medications: ______________________________________________________________________

______________________________________________________________________________________________ b. Describe any side effects of medications that may have implications for working. E.g., dizziness, drowsiness, fatigue,

Lethargy, stomach upset, etc.:_______________________________________________________________________________________________

________________________________________________________________________________________________

5. Describe the clinical findings including results of mental status examination that demonstrate the severity of your patient=s

Mental impairment and symptoms: __________________________________________________________________________________________________

__________________________________________________________________________________________________

6. Prognosis: _______________________________________________________________________________________

7. Identify your patient=s signs and symptoms by checking to the left of the appropriate description:

8. To determine your patients ability to do work-related activities on a day-to-day basis in a regular work setting, please give us your opinion based on your examination of how your patients mental/emotional capabilities are affected by the impairment(s). Consider the medical history, the chronicity of findings (or lack thereof), and the expected duration of any work-related limitations, but not your patients age, sex or work experience.

! Seriously limited, but not precluded means ability to function in this area is seriously limited and less than satisfactory, but not precluded.

! Unable to meet competitive standards means your patient cannot satisfactorily perform this activity independently, appropriately, effectively and on a sustained basis in a regular work setting.

!No useful ability to function, an extreme limitation, means your patient cannot perform this activity in a regular work setting.

(Q) Explain limitations falling in the three most limited categories (identified by bold type) and include the medical/clinical findings that support this assessment:

(E) Explain limitations falling in the three most limited categories (identified by bold type) and include the medical/clinical findings that support this assessment.

(F) Explain limitations falling in the three most limited categories (identified by bold type) and include the medical/clinical findings that support this assessment:

9. Does your patient have a low IQ or reduced intellectual functioning? Yes No

Please explain (with reference to specific test results): ______________________________________________________

_________________________________________________________________________________________________

10. Does the psychiatric condition exacerbate his/her experience of pain or any other physical symptom? Yes No

If yes, please explain:_______________________________________________________________________________

_________________________________________________________________________________________________

B. Criteria of the Listings

Indicate to what degree the following functional limitations (which are found in paragraph B of listings 12.02-12.04, 12.06-12.08 and 12.10 and paragraph D of 12.05) exist as a result of the individual's mental disorder(s).

FUNCTIONAL

LIMITATION DEGREE OF LIMITATION

1. Restriction of Activities None Mild Moderate Marked* Extreme* Insufficient

Of Daily Living Evidence

2. Difficulties in Maintaining None Mild Moderate Marked* Extreme* Insufficient

Social Functioning Evidence

3. Difficulties in Maintaining None Mild Moderate Marked* Extreme* Insufficient Concentration, Evidence

4. Repeated Episodes of None One or Two Three or Four More* Insufficient

Decompensating, each of Evidence

Extended Duration

Degree of limitation that satisfies the functional criteria:

C. AC@ Criteria of the Listings

1. Complete this section if 12.02 (Organic Mental), 12.03 (Schizophrenic, etc.), or 12.04 (Affective) applies and requirements in paragraph B of the appropriate listing are not satisfied by findings of marked or extreme above.

Note: Item 1 below is more than a measure of frequency and duration. See 12.00C4 and also read carefully the instructions for this section. Check the appropriate box:

" Medically documented history of a chronic organic mental (12.02), schizophrenic, etc. (12.03), or affective (12.04) disorder of at least 2 years duration that has caused more than a minimal limitation of ability to do any basic work activity, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:

" Repeated episodes of decompensating, each of extended duration

" A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate

" Current history of 1 or more year's inability to function outside a highly supportive living arrangement with an indication of continued need for such an arrangement

" Evidence does not establish the presence of the AC@ criteria

" Insufficient evidence to establish the presence of AC@ criteria (explain in Part IV Consultants Notes)

2. Complete this section if 12.06 (Anxiety-Related) applies and the requirements in paragraph B of listing 12.06 are not satisfied.

" Complete inability to function independently outside the area of one's home

" Evidence does not establish the presence of the AC@ criteria

" Insufficient evidence to establish the presence of the AC@ criteria (explain in Part IV, Consultant=s Notes)

D. 1. On the average, how often do you anticipate that your patient's impairments or treatment would cause your patient to be absent from work: (check appropriate box)

" Never " about 1 day per month " about 2 days per month " about 3 days per month

" About 4 days per month " more than 4 days per month

2. Has your patients' impairment lasted or can it be expected to last at least 12 months: " yes " no

If no, please explain:______________________________________________________________________________

3. is your patient a malingerer? "Yes " no

4. Are your patents impairments reasonably consistent with the symptoms and functional limitations described in this Evaluation? " Yes " no

If no, please explain ______________________________________________________________________________

5. Please describe any additional reasons not covered above why your patient would have difficulty working at a regular job on a sustained: __________________________________________________________________________________

6. Can your patient manage benefits in his or her own best interest?

" Yes " no

7. What is the earliest date that the description of symptoms and limitations in this form applies? ____________

Physician's Signature____________________________

Date Form Completed________________ Please Return Form To:

Mike Murburg P.A

15501 N Florida Ave

Tampa, FL 33613

VII

â—� Obtaining Case Supporting Documentation

â—�

â—� The burden of proof in a Social Security Disability case is upon the claimant. Never forget that. It is your responsibility to obtain evidence to support your client's claim. This involves making sure your client has conveyed to you all the medical information he or she can. It is up to you to determine relevancy and to obtain the proper medical records and opinions on your client's RFC and the opinions that support that RFC. When to get these records will be up to you, but the sooner, the better. It is best to send your client an RFC questionnaire for him to bring in to his/her doctor as early in the case as popular to give you a baseline for RFC. Also, as these cases progress, as a general rule, a claimant will run out of financial and medical resources as the case ages. Once a case gets to the hearing level, you can check the online file to see what records have been exhibited and which ones you will need to still get and update. Your records should include as applicable: Treatment Notes, Clinical Records, Hospital Records inclusive of diagnostic tests, admission and discharge summaries, Hospital Billing Histories, Psychiatric records and reports, Prison and Jail medical treatment records and medication records, School records in childhood cases and School Psychological Test results and Records in childhood and adult Mental Impairment cases.

VIII

â–� Determining the Onset of Disability (Including Date Last Insured)

â–�

â–� Date of Last Insured or DLI is one of the most important dates in your case. It is the date the claimant is last insured for SSDI benefits. Many claimants who have progressive illnesses may develop a sporadic earnings histories and DLI may become an elusive issue without the claims file in front of you. As a rule of thumb, DLI is no more than five years after the claimant stopped working and contributing towards his Social Security Disability Insurance.

â–�

â–� If you cannot anchor your proof of disability before that date, then you will not win your case. Your "anchor" must be a medical diagnosis or some medical evidence that the claimant's disabling condition existed prior to the DLI. Ostensibly, the severity of the condition will be based on an ALJ's determination of the evidence based on the presentation of records and testimony. But there needs to be something.

â–�

â–� In SSI cases, since there is no DLI and benefits accrue as of the date the SSI claim is filed, DLI is of no practical consequence, unless it is a combined Title 2 and Title 16 claim (SSDI/SSI). If it is a Title 2 claim, DLI is of the utmost importance. So always check your file for DLI and make sure you obtain the relevant medical records (and/or medical testimony from a treating physician) prior to the claimant's DLI. One may find DLI annotations in various sections of the claimant's file including the "Summary of Earnings" and/or DIBWIZ sections.

VIX

â–� Proving Pain

â–�

â–� How does one prove the existence of something he cannot taste, feel, see, hear or smell. The proof of pain can be difficult. Objectively, one can look for atrophy of the affected areas, but unless the atrophy is severe, one may be hard pressed to find it noted in the clinical or treatment notes of the claimant. Pain, though subjective can be corroborated by the exhaustion of medical treatments. People in pain go to great lengths to avoid it. This is true with the use of pain killing medications, especially of the narcotics variety. The use of walking canes, well-worn at the handle, walkers and ambulatory devices are probative of disability. Having a non-related witness testify is a preferred means of proof that the claimant has trouble dressing, grooming, doing even simple household chores like dusting, driving and cooking, and shopping or that the claimant has abandoned the enjoyable activities and relationships, including pets, he or she used to enjoy prior to the onset of disability.

XX

â–� Medical History and Treating Doctors' Opinions

â–�

â–� Your client's medical history is obviously of the utmost importance in a Social Security disability case. So are the opinions of the claimant's treating physicians. The opinions of treating physicians are normally entitled to great weight unless they are undermined with clinical or medically historical information that conflicts with their own opinions and renders the opinions of treating physicians infirm or less firm. The opinions of treating physicians will be weighed against the opinions of State physicians who evaluate the claimant or who just evaluate the claimant's file. These medical opinions are entitled to some weight but can be ignored or given little to no weight when the opinions of treating physicians are consistent overall with the claimant's underlying causes of disability.

Disability is an administrative determination and most often at the hearing level, a vocational one. So a treating physician writing that: "The patient is disabled" is routinely shunned by ALJs as the determination of disability as it pertains to the Social Security Act is that of the ALJ and theirs alone. Some take letters from physicians saying "disabled" personally. Because "disabled" tells the reader almost nothing, at our offices we routinely send our clients an appropriate RFC with a cover letter and ask the client to sit down with his or her physician and have the physician complete the form. This is essential for the sequential analysis where the ALJ must take into consideration the claimant's physical and mental impairments. Who better than the claimant's treating physician, whose opinion should normally be afforded great weight to make a determination as to what the claimant's limitations reasonably should be.

XXI

â–� Employment History

A claimant's employment history is important as one of the steps of the sequential evaluation process is to determine whether or not the claimant can go back to what he used to do for a living. So, consideration of all Past Relevant Work, PRW, or work that the claimant has done for the fifteen years prior to his/her alleged onset date of disability is very important. PRW is work done to earn a living that was done on a full time basis by the claimant long enough to be relevant. This relevancy is usually seen as work done on a full time basis for three months or more by the claimant.

The exertional levels of the claimant's PRW are important too, as many jobs within the same description will have varied requirements for repetitive lifting and the amount of weight. For example, a delivery driver any be done at the light, medium or heavy exertional levels. It is important for you to find out whether your client exceeded a predictable level of exertion by lifting and carrying heavy tool boxes or inventory or any deviation from what the DOT, Dictionary of Occupational Titles would normally dictate.

XXII

Functional Exertional and Non-Exertional Limitations

§ 404.1569a. Exertional and nonexertional limitations.

(a) General. Your impairment(s) and related symptoms, such as pain, may cause limitations of function or restrictions which limit your ability to meet certain demands of jobs. These limitations may be exertional, nonexertional, or a combination of both. Limitations are classified as exertional if they affect your ability to meet the strength demands of jobs. The classification of a limitation as exertional is related to the United States Department of Labor's classification of jobs by various exertional levels (sedentary, light, medium, heavy, and very heavy) in terms of the strength demands for sitting, standing, walking, lifting, carrying, pushing, and pulling. Sections 404.1567 and 404.1569 explain how we use the classification of jobs by exertional levels (strength demands) which are contained in the Dictionary of Occupational Titles published by the Department of Labor, to determine the exertional requirements of work which exists in the national economy. Limitations or restrictions which affect your ability to meet the demands of jobs other than the strength demands, that is, demands other than sitting, standing, walking, lifting, carrying, pushing or pulling, are considered nonexertional. When we decide whether you can do your past relevant work (see § § 404.1520(f) and 404.1594(f)(7)), we will compare our assessment of your residual functional capacity with the demands of your past relevant work. If you cannot do your past relevant work, we will use the same residual functional capacity assessment along with your age, education, and work experience to decide if you can adjust to any other work which exists in the national economy. (See § § 404.1520(g) and 404.1594(f)(8).) Paragraphs (b), (c), and (d) of this section explain how we apply the medical-vocational guidelines in appendix 2 of this subpart in making this determination, depending on whether the limitations or restrictions imposed by your impairment(s) and related symptoms, such as pain, are exertional, nonexertional, or a combination of both.

(b) Exertional limitations. When the limitations and restrictions imposed by your impairment(s) and related symptoms, such as pain, affect only your ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling), we consider that you have only exertional limitations. When your impairment(s) and related symptoms only impose exertional limitations and your specific vocational profile is listed in a rule contained in appendix 2 of this subpart, we will directly apply that rule to decide whether you are disabled.

(c) Nonexertional limitations. (1) When the limitations and restrictions imposed by your impairment(s) and related symptoms, such as pain, affect only your ability to meet the demands of jobs other than the strength demands, we consider that you have only nonexertional limitations or restrictions. Some examples of nonexertional limitations or restrictions include the following:

(i) You have difficulty functioning because you are nervous, anxious, or depressed;

(ii) You have difficulty maintaining attention or concentrating;

(iii) You have difficulty understanding or remembering detailed instructions;

(iv) You have difficulty in seeing or hearing;

(v) You have difficulty tolerating some physical feature(s) of certain work settings, e.g., you cannot tolerate dust or fumes; or

(vi) You have difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching.

(2) If your impairment(s) and related symptoms, such as pain, only affect your ability to perform the nonexertional aspects of work-related activities, the rules in appendix 2 do not direct factual conclusions of disabled or not disabled. The determination as to whether disability exists will be based on the principles in the appropriate sections of the regulations, giving consideration to the rules for specific case situations in appendix 2.

(d) Combined exertional and nonexertional limitations. When the limitations and restrictions imposed by your impairment(s) and related symptoms, such as pain, affect your ability to meet both the strength and demands of jobs other than the strength demands, we consider that you have a combination of exertional and nonexertional limitations or restrictions. If your impairment(s) and related symptoms, such as pain, affect your ability to meet both the strength and demands of jobs other than the strength demands, we will not directly apply the rules in appendix 2 unless there is a rule that directs a conclusion that you are disabled based upon your strength limitations; otherwise the rules provide a framework to guide our decision.

[56 FR 57943, Nov. 14, 1991, as amended at 68 FR 51163, Aug. 26, 2003]

â–�

â–� XVIII

â–� Daily Activity Diaries

â–�

â–� I am not a real fan of daily activity diaries. In most disability cases, daily "non-activity diaries" might be more appropriate. I am a fan of claimants though who calendar or diary their seizures and seizure activities and post-tical periods of recovery in Menieres Disease cases and in cases involving Epilepsy and other cases involving seizures. Often, housemates and family should also keep these diaries, as their observations will be far more acute than the claimant's observations due to the severity of the affliction. Pain diaries are good to keep too with chronic pain cases or Multiple Sclerosis, Arthritis and Rheumatoid Arthritis cases. Typically, if a claimant averages one seizure episode per month followed by one day of post-tical recuperative inactivity that will show that the claimant cannot sustain competitive employment.

â–�

â–� I am though a fan in cases involving the use of diaries that can chronicle over a long period of time bladder or bowel issues, as in incontinence and IBS, Irritable Bowel Syndrome, and Chron's cases. These cases require proof that the putative claimant cannot engage in anything but sheltered employment because typically, the claimant is so affected by bladder or bowel disease that he or she would be losing approximately 10% or more of the typical work day (exclusive of typical and customary breaks) due to the necessity of having to use the bathroom or thinking about having to use the bathroom.

XXIV

â—� Special Considerations in Child Disability Claims

â—�

â—� Rule: "Kid" cases are different. Child disability cases from birth to age 18 are evaluated on a special criteria best set forth as described on this questionnaire used by the SSA and also used in my own practice as set forth below. Adult children 18-22 are evaluated based on adult criteria medically and vocationally based on their illness and residual functional capacity. See Mental and Physical RFC forms above.

• CHILDHOOD DISABILITY EVALUATION FORM

To: Social Security Administration Re: ___________________________(Name of Patient)

___________________________(Social Security No.)

___________________________(Date of Birth)

Please answer the following questions concerning your patient's impairments. Attach all relevant treatment notes, radiologist reports, laboratory and test results that have not been provided previously to the Social Security Administration.

1. Please list the Child's impairments: _________________________________________________

________________________________________________________________________________

________________________________________________________________________________

Functional Equivalence:

Consider functional equivalence when the child's medically determinable impairment(s) is "severe" but does not meet or medically equal a listing. An impairment(s) functionally equals the listings if it results in "marked and severe functional limitations," i.e., the impairment(s) causes "marked" limitations in two domains or an "extreme" limitation in one domain. FOR DEFINITIONS OF "MARKED" AND "EXTREME" PLEASE SEE THE FOLLOWING PAGES.

Describe and evaluate the child's functioning in all domains; see POMS DI 25225.025-055 (20 CFR 416.926a(f)-(l). Then discuss the factors that apply in the child's case and how you evaluated the evidence as described in Section IC above and in POMS DI 25210.001FF. (20CFR 416.924a). Rate the limitations that result from the child's medically determinable impairment(s).

A. Acquiring and Using Information: ___No Limitation ___Less than Marked ___Marked ___Extreme

Explain:_____________________________________________________________________________

B. Attending and Completing Tasks: ___No Limitation ___Less than Marked ___Marked ___Extreme

Explain:_____________________________________________________________________________

C. Interacting and Relating with Others: ___No Limitation ___Less than Marked ___Marked ___Extreme

Explain: ___________________________________________________________________________

D. Moving About and Manipulating Objects: ___No Limitation ___Less than Marked ___Marked ___Extreme

Explain: ____________________________________________________________________________

E. Caring For his or her self: ___No Limitation ___Less than Marked ___Marked ___Extreme

Explain:_____________________________________________________________________________

F. Health and Physical Well-Being: ___No Limitation ___Less than Marked ___Marked ___Extreme

Explain: ____________________________________________________________________________

Does the impairment or combination of impairments functionally equal the listings? Please complete as follows:

___YES "Marked limitation" in two domains; findings explained in Section IIA. Marked limitation See POMS DI 25225.020B (20 CFR 416.926a (e)(2)).

This impairment(s) Interferes seriously with the child's ability to independently initiate, sustain or complete domain-related activities. Day-to-day functioning may be seriously limited when the child's impairment(s) limits only one activity or when the interactive and cumulative effects of the child's impairment(s) limit several activities.

* "More than Moderate" but "less than extreme" limitation (i.e., the equivalent of functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean), or

* up to attainment of age 3, functioning at a level that is more than one half but more than two-thirds of the child's chronological age when there are no standard scores from standardized tests in the case record, or