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Cardiac Listing
This was a very informative seminar which was a basic primer on the anatomy and physiology of the
heart and then discussed the specific cardiac listings
in layman terms. Following are a few highlights of tha
informative presentation.
There are four chambers to the
heart with the top chambers called
the right and left atriums and the
bottom chambers called the right
and left ventricles. The right side
of the heart takes in blood through
the atrium and out through the right
ventricle to the lungs to be oxygen-ated. The left side of the heart
muscle is three times as strong as
the right since it takes the oxygen-
ated blood from the lungs and
pumps it to the rest of the body.
The pressure on the left side of the
heart is lower than the right side of the heart where the
blood is pumped to the lungs.
Left heart failure is where the left ventricle is unable
to pump the blood to the body adequately. Shortness
Editor’s Note:
Lewis Seward was
kind enough to
provide the fol-
lowing summary
of the seminars
and events from
the NOSSCR con-
ference that took
place in San Di-
ego, CA in April.
By Carl A. Anderson
ANDERSON, ANDERSON
& ASSOCIATES
Detroit, MI
Section Council Member
and Newsletter Editor
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FF RRFF RRFF RRFF RRFF RR
OOOOOOOOOO MM TT HH EE GG RRMM TT HH EE GG RRMM TT HH EE GG RRMM TT HH EE GG RRMM TT HHEE GG RR
AA PPEEAA PPEEAA PPEEAA PPEEAA PP EE
VVVVVVVVVV II NNEEIINN EEII NNEEIINN EEIINNEE
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RRMM TT HHEE GG
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yy PP rryy PP rryy PP rryy PP rryy PP rroo ggoo ggoo ggoo ggoo gg
rrrrrrrrrr aaaaaaaaaa mmmmmmmmmm
At last year’s annual section meeting, the Honorable Mar-
tin Magid, Chief ALJ for the Detroit OHA, stated that hewas particularly pleased with the performance of the Senior
Attorney Program in his office. From my discussions with
many of my colleagues, I can safely say that Judge Magid is
not alone in his admiration for the program.
Under the program, OHA staff attorneys search through
the OHA docket of pending cases, looking for claimants
whose case may be paid on the record and for whom ahearing would be unnecessary. If further development of the
case is needed to support a favorable decision, the staff at-
torneys are empowered to obtain such additional evidence.
When there is sufficient evidence in the record, the staff at-
torneys issue favorable decisions. It should be noted, how-CCoonnt
tiinnuuee dd oonn p
paaggee 55
NN OO SS SS CC RRNN OO SS SS CC RRNN OO SS SS CC RRNN OO SS SS CC RRNN OO SS SS CC RR
SSSSSSSSSS EE MMEE MMEE MMEE MMEE MM
II NN AA RRII NN AA RRII NN AA RRII NN AA RRII NN AA RR
UUUUUUUUUU PP DD AAPP DD AAPP DD AAPP DD AAPP DD AA
TT EETT EETT EETT EETT EE
NN OO SS SS CC RRNN OO SS SS CC RRNN OO SS SS CC RRNN OO SS SS CC RRNN OO SS SS CC RR
SSSSSSSSSS EE MMEE MMEE MMEE MMEE MM
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UUUUUUUUUU PP DD AAPP DD AAPP DD AAPP DD AAPP DD AA
TT EETT EETT EETT EETT EE
NN OO SS SS CC RRNN OO SS SS CC RRNN OO SS SS CC RRNN OO SS SS CC RRNN OO SS SS CC RR
SSSSSSSSSS EE MMEE MMEE MMEE MMEE MM
II NN AA RRII NN AA RRII NN AA RRII NN AA RRII NN AA RR
UUUUUUUUUU PP DD AAPP DD AAPP DD AAPP DD AAPP DD AA
TT EETT EETT EETT EETT EE
JJ
uu ll y y 11
99
99
88 VV
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ll uu mm ee 11
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2
Evan A. Zagoria
PROVIZER &
PHILLIPS, P.C.
Southfield, MI
I hope you enjoy this first issue of our Sectionnewsletter.
This newsletter will keep you better informed
of Section activities, hopefully with more warn
ing. Elsewhere, you will find dates of the Annua
Meeting in Lansing and future general section
meetings. We have managed to avoid a direc
conflict with the Workers’ Compensation Sec-
tion, as many of our members are in both. This
meeting will include the election of officers and
council members. We want to encourage as
many members as possible to become activelyinvolved in the Section. If you are interested in
serving on the Council or a committee, please
call or write.
Commissioner Apfel was recently in Detroit
with Congressman Sander Levin as part of loca
round tables on the issue of future funding of
SSA into the next century. I was present on be-
half of the Section. I would anticipate more of
these being held nationwide, perhaps not all with
participation by SSA management. Presiden
Clinton and Congress are trying to develop some public consensus as to which of the various strat-
egies are more (or less) acceptable and desir-
able. Do not be afraid to air your views, particu-
larly with our experience with SSA.
Regarding regulatory news, SSA seems to be
backing away from revising the rules on th
Workers’ Compensation offset. I sense their con-
cern is more related to the cost to the states
OFFICERS
Chairperson
Evan A. Zagoria
Southfield
Chairperson-Elect
Deanna J. Lee-Kaniowski
Southfield
SecretaryDiane M. Kwitoski
Pontiac
Treasurer
Edward M. WaudPetosky
C OUNCILM EMBERS
Carl A. Anderson
Detroit
David B. Newman
Berkley
Lewis M. Seward
Bay City
Thomas M. Stellard
Grand Rapids
Marsha E. WoodsLansing
C OMMISSIONERL IAISON
Reginald M. Turner Detroit
FFFFFFFFFF rrrrrrrrrr oo mmoo mmoo mmoo mmoo mm
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ii oo nnii oo nnii oo nnii oo nnii oo nn
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3
SSSSSSSSSSEECCEECCEECCEECCEECC
TT IITT IITT IITT IITT II
OOOOOOOOOONNNNNNNNNN AA AA AA AA AACCCCCCCCCC TT IITT IITT IITT II
TT IIVVVVVVVVVV IITT IIEESSIITT IIEESSIITT IIEESSIITT IIEESS
IITT IIEESS
CCCCCCCCCC AA LL EE NN DD AA RRAA LL EE NN DD AA RRAA LL EE NN DD AA RRAA LL EE NN DD AA RRAA LL EE NN DD AA RR
11999988 -- 11999999 11999988 -- 11999999 11999988 -- 11999999 11999988 -- 11999999 11999988 -- 11999999
SSSSSSSSSSEECCEECCEECCEECCEECC
TT IITT IITT IITT IITT II
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11999988 -- 11999999 11999988 -- 11999999 11999988 -- 11999999 11999988 -- 11999999 11999988 -- 11999999
employers and insurance companies rather
than concern for their clients. The Repre-
sentative Rules of Conduct will be going
through final internal approvals and sign-
offs in late May, early June. Nancy Shor, at
the NOSSCR conference in San Diego, had
not been advised of their content. A repre-
sentative from SSA in San Diego told me
that the final draft will be more to our liking
than the original draft. Hopefully, this will
be more than wishful thinking on his part.
Lately, SSA’s proposals on user fees do not
seem likely to be attached to other pending
legislation.
One of the goals of my service as Sec-
tion Chair was to obtain some relief as to
the fees we incur to purchase medical
records. Certain legislation on this issue has
been drafted and will soon be introduced, if
it has not already. Once we receive more
formal details as to the bill’s number, com-
mittee, etc., we will keep you advised, as
well as to discuss potential avenues for lob-
bying. In the short term, I have just reached
an agreement with the Smart Corporation
to limit its fees in records for a Social Se-
curity disability claim to $25. I await formalconfirmation of this from the Smart Corpo-
ration, which I will provide to the member-
ship. Keep in mind it will also take Smart
some time to disseminate these new guide-
lines to its workers at each facility. Errone-
ous invoices could likely be repriced. Upon
receipt of this formal approval from Smart,
I will contact HCC and others to see if they
will be willing to provide records for the
same fee. If you have lists of various copy
services you would like me to deal with,
please provide me a copy of an invoice or
other identifying information to enable me
to start negotiations. This arrangement is
not a final solution, but it is a step in the
right direction.
I welcome your comments and sugges-
tions.
Annual Meeting
and Seminar
September 16, 1998
Lansing
Introduction to
Social Security Law
October 16, 1998
Detroit
(Details to be announced)
Winter Meeting
January 22, 1999
Lansing
Spring Meeting
March 26, 1999
Lansing
Summer Meeting
June 4, 1999
Lansing
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5
ever, that staff attorneys do not issue unfavorable decisions.If, after additional development, the record does not sup-
port a disability finding, the case is placed back on the docket
to be scheduled for a hearing before an ALJ.
Personally, I have found the Senior Attorney Program to
be an unqualified success. On many occasions, I have re-
ceived notification that a claimant’s case was being reviewed
by a staff attorney. Often, after some small development, anupdated doctor’s report or an agreement to amend an onset
date, I would receive a favorable decision.
It now appears that we are witnessing the end of this suc-
cessful program in favor of another, far less promising, initia-
tive. The current program is scheduled to end on June 30,
1998. Although it appears that the program will be extended
for an additional nine months, through March 31, 1999, SSAhas planned many changes that will certainly diminish its ef-
fectiveness.
The most significant change is the drastic reduction in the
number of senior attorneys in the program. Nationwide, cur-
rently there are approximately 494 senior attorney positions.
SSA proposes to reduce that number to 309. Locally, the
loss of senior attorney positions is staggering. In the Detroit
OHA, for example, there are currently nine senior attor-neys. Under the new proposal, this number would be re-
duced to two. It appears that Lansing and Flint OHA’s will
have only two senior attorney positions, while the Oak Park
OHA will have two - three positions, and Grand Rapids will
have only one. Under the program as modified, senior attor-neys would do senior attorney work 100% of the time. They
would be expected to review and develop 75 cases per
month, and they would issue at least 20 senior attorney de-
cisions per month. The Regional Chief ALJ will select who
fills the slots, based on merit.
The deleterious effect that these changes will have upon
the Senior Attorney Program is obvious. In places like theDetroit OHA, two people will now be asked to do the work
that was previously performed by nine. Accordingly, many
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1
1 meritorious cases will be missed, and many more unneces-sary hearings will be scheduled. Many senior attorneys wil
also face a demotion from GS-13 to GS-12, thereby losing
thousands of dollars in pay each year. A corresponding nega-
tive effect on OHA morale and work product can be an
ticipated.
These proposed changes to the Senior Attorney Program
are not that surprising, however, as the program has alwaysfaced significant opposition. In some OHA’s the program
was never fully implemented, as the redirection of personnel
reduced the number of attorneys available for ALJ decision
drafting, and the issuance of senior attorney decisions took
some “easy” cases away from ALJ’s. Moreover, the Adju-dication Officer (AO) Project, which has produced fewer
favorable decisions, and, in many cases, has resulted in an-
other needless step on the way to a hearing, is favored over
the Senior Attorney Program by some policy makers withinSSA. It has been said that some opponents of the SeniorAttorney program would like to see no senior attorneys in
offices that also have the AO Project. Additionally, sources
both inside and close to SSA have indicated that the Dis-
ability Process Redesign Team desires to avoid competition
between the Senior Attorney Program and the AO Project
by shutting down the Senior Attorney Program altogether. Itis anticipated that the AO Project will be implemented na-
tionwide sometime after March 31, 1999.
It is my understanding that the entire motivation behind process redesign is the elimination of wasteful, unnecessary
aspects of the disability determination system. It is difficult
then to understand how the implementation of a needless
and wasteful project, at the expense of a beneficial and productive initiative, effectuates that goal. If ALJ hearings
are too costly, then SSA should take steps to ensure that
unnecessary hearings are avoided. Accordingly, the Senior
Attorney Program is a step in the right direction.
As claimant representatives, we should not allow this pro-
gram to be sacrificed without a fight. I would strongly urgeany and all Social Security disability attorneys to contac
their Congressman and Senators with letters of support.
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of breath is a classic complaint of left heart failure. Left heart
failure is usually caused by hypertension. To meet a listing for
hypertension you must have end organ damage. The reason
there is end organ damage due to uncontrolled hypertension is
that the organs cannot take the increased blood pressure.
Right heart failure is generally caused by an underlying dis-
ease of the lungs themselves. Since the right side of the hearttakes in blood and pumps it to the lungs, the blood is less oxy-
genated and the heart enlarges to pump higher
volumes of blood to the lungs under the
theory that increased quantity in lower oxy-
genated blood will meet the demands of the
body. However, as the heart muscle enlarges
due to being overworked, it reaches a point
where it loses its efficiency in pumping. The
heart actually becomes less effective and
you become more short of breath.
The classic ankle edema is caused by both
left and right heart failure. This is due to the
venous pressure from the heart which liter-
ally forces fluid out of the vessels and into
the tissues.
Myocardial ischemia is a lack of oxygen in the heart tissue. It
may be short-term which would cause heart pain or long-term
which could produce death of the heart tissue. Angina means
pain. Angina pectoris means chest pain.
“Syndrome X” is caused when a patient has exertional chest
pain but does not have any positive findings on an arteriogram
or even an EKG. It is caused by vessels that are occluded that
are too small to be identified on angiography.
Murmurs are caused where a valve is stenotic (narrowed)
causing a turbulent flow of the blood or when the valve does
not close effectively, again causing a turbulent flow.
The doctor warned that many EKGs are misread. If you sus-
pected a client has heart problems with a normal EKG, you
should send the client to another hopefully more experienced
cardiologist.
Another problem is that on treadmill EKGs, you must have a
good baseline EKG, i.e., the EKG must be run while the patient
is standing and then when the patient is hyperventilating.
In the treadmill EKGs, the listing requires that there must be
changes in the EKG at five mets or less. One met (metabolic
equivalent) is laying still. Two to three mets is usual household
chores and five mets is more vigorous household chores. A
positive finding on a treadmill is the appearance of a flat or
down sloping S-T depression of one millimeter or more. I never
did understand what this meant until the seminar when the doctor
went over the basic reading of an EKG. The S-T segment is the
pause after the heart beats.
Echocardiograms show heart size. The LV diastolic diameter
in an echocardiogram is the diameter of the left ventricle. The
larger the diastolic diameter, the larger the heart is. The listing
calls for an LV diameter greater than 55 millimeters (5.5 centi-
meters).
The ejection fraction is the percent of contractility of the lef
ventricle. A normal ejection fraction is 50 percent to 60 per-cent. A weak heart muscle contracts less and therefore, that is
the reason why a 30 percent ejection frac-
tion is the benchmark for meeting a listing.
Another way to check the size of the hear
is with a chest x-ray. The ratio of the heart
relative to the thoracic cavity should be .5
or less.
Regarding blood vessels that supply the
heart muscle itself, there are three times
more vessels on the left side of the heart (the
stronger side) than the right side. The doc-tor indicated that if the left main is occluded
it is easier to meet a listing since this is a very
serious occlusion. The left main branches to the left anterior
descending and left circumflex and these two then branch off
into literally hundreds of smaller vessels.
Robert B. Chevalier, M.D., has been an expert in cardiology
and has also worked on a part-time basis for DDS. He is cur-
rently semiretired and works as a consultative physician for
the San Diego OHA. He said he would be happy to review any
stress tests, EKG or any cardiac-related question. He can be
reached through Steven R. Jacobs, an attorney belonging to NOSSCR in Indiana, who keeps in contact with him.
Functional Capacity Evaluations and Pain
The speaker discussed the work tolerance testing to deter-
mine the functional capacity. He pointed out something that we
have known for a long time—that these tests do not accurately
reflect the RFC of a client. These RFCs are standardized through
out the country. One of the standards is that if a person can lift
a maximum of 80 pounds, they extrapolate to report that the
person can lift 25 percent of this, i.e., 20 pounds, on a frequen
basis and 50 percent (40 pounds) on an occasional basis.
When testing a sit/stand option for an eight-hour period, they
have the patient stand for 33 minutes. If the person can stand
for the entire 33 minutes, that means the person can be on thei
feet for an entire eight-hour shift. If they can only stand for 15
minutes, that is extrapolated to mean that they can stand for
four hours out of an eight-hour workday. They do the same
thing with sitting, using the same extrapolated results. The tes
for sitting is that you sit in a chair and you are not allowed to
squirm.
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The bottom line is that these Work Tolerance Tests are not an
exact science. The best functional capacity evaluation is where
the person is tested over a two-day period. Quite often, a claimant
is sore the next day or unusually fatigued. Since most tests are
only three hours for one day, the speaker encouraged the attor-
ney to have the patient return the next day to physical therapy
so that the claimant’s fatigue or pain is adequately documented.
An anesthesiologist then talked about pain management con-
trol. Chronic pain is defined as pain that lasts more than six
months. He explained that there is a social, emotional and fi-
nancial consequence of chronic pain.
A dermatome is an area of body enervated by that particular
nerve. For instance, the thumb is one dermatome. The pinky is
another dermatome and the three middle fingers are a third
dermatome. He explained in the “olden days” when patients
complained about glove-like pain in their hand they were not
telling the truth because the hand involves three different der-
matomes. However, science has found that it is not that un-
usual to have more than one dermatome affected. Radiculopathyis pain in one or more of the dermatomes.
RSD is now called Chronic Regional Pain Syndrome. The
usual treatment is nerve blocks. One of the symptoms of CRPS
is allodynia. This is a non-painful stimulus that is perceived as
painful by the person. The example is just running your hand
over an area that causes intense pain. He said that typically
many of these patients will complain that they cannot even
stand to have covers on certain areas when in bed because of
the pain that it causes.
In morphine pumps, the doctor pointed out that you only
need one percent of the morphine that you normally need orally.In other words, if you need 100 milligrams to control your pain
orally, by a morphine pump you only need one milligram. With
a morphine pump it is programmed by the doctor, therefore,
the patient cannot normally control the amount of morphine
injected (unless they are cancer patients). Morphine pumps cost
between $15,000 and $20,000.
Mechanical Back Syndrome is pain in the lower back lasting
over six months. Facets in the spine are to prevent the spinal
column from rotating too far.
Recent Circuit Court Decisions
A claimant’s burden at Step 2 (the severe impairment step)
has been described as “de minimus.” Hawkins v Chater , 113
F3d 1162, 1169 (10th Cir 1997), quoting Williams v Bowen,
844 F2d 748, 751 (10th Cir 1988). If the claimant makes a de
minimus showing of medical severity, the ALJ must proceed to
the next step of the sequential evaluation process.
The RFC is not just the ability to lift weights occasionally,
rather it is the ability to perform the requisite physical activities
on a daily basis “in the sometimes competitive and stressful
conditions in which real people work in the real world.” Ingram
v Chater , 107 F3d 598, 604 (8th Cir 1997), citing McCov v
Schweiker , 683 F2d 1138, 1147 (8th Cir 1982). A good case on
retrospective opinion of an onset date is Likes v Callahan , which
ruled that retrospective medical opinions which are not cor
roborated by contemporaneous medical reports but which are
corroborated by lay evidence relating back to a past period of
disability, can support a finding of a past impairment. (There is
also a SSR on this which is either 88 or 8320).
One way to get a case remanded is to look at whether the
ALJ in his hypothetical asked for simple jobs. If your client can
only do simple jobs, according to the DOT regulations, they
cannot do the full range of the classification of work, i.e., sed
entary, light, etc. That is because simple jobs are listed on the
DOT as Level 1 jobs. The thing to do is to check the jobs that
the VE lists to determine whether they are Level 1 jobs or Leve
2 jobs. A case on this is Lucv v Chater , 113 F3d 905, 909 (8th
Cir 1997), which said that while a Level 1 reasoning ability
requires the ability to understand and carry out simple instructions, a Level 2 reasoning ability requires the ability to under-
stand and carry out detailed instructions. Since the evidence of
record demonstrated the claimant could only “follow simple
instructions,” he could not perform sedentary jobs with a rea-
soning level of 2.
In the evaluation of the 12.05 listing (mental retardation with
IQ of 70 or less), the second prong is met “when the claimant
has a physical or additional mental impairment that has more
than a slight or minimal effect on his ability to perform work.”Sird v Chater , 103 F3d 401, 403 (8th Cir 1997), quoting Cook
v Bowen, 797 F2d 687 (8th Cir 1986). Hawkins v Chater , 113
F3d 1162, 1165 (10th Cir 1997), gives the Commissioner “broadlatitude in ordering consultative examinations when there is a
direct conflict in the medical evidence which needs resolution
or when the medical evidence is inconclusive.”
Non-Disability Factors
This seminar talked about the disability benefits for children
widows, family maximum, etc. In a DAC claim, I did not real-
ize that once the claimant married, they would lose their ben
efits unless they were married to another disabled person. In a
widow’s claim, you do not have to be “legally” married to re-
ceive widow’s benefits. Social Security looks at the law of the
particular state where the widow lives. The test is whether the
widow (whether married or not) would receive a portion of the
intestate share of the spouse’s estate. If so, the widow will be
entitled to widow benefits.
One interesting fact is that Social Security is not obligated to
pay child’s benefits unless they are specifically notified (usu
ally on the application) that the claimant is claiming children’
benefits. If the claimant fails to list all of the children (whether
intentional or not) the child is out of luck. Further, if the child
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or spouse of the claimant (usually ex-spouse of the claimant)
discovers this fact, and notifies Social Security, Social Security
is not obligated to pay any retro benefits from the onset of the
disability except for six months from when the dependent child
put Social Security on notice. If a disabled adult child has per-
formed SGA, the speaker believes that this would deep-six the
DAC claim. The speaker also talked about correcting the earn-
ings record. You have three years, three months and 15 days
after the close of the taxable year to correct the earnings records.
However, if the earnings records are specifically wages, and
you can prove your wages, there is no statute of limitations.
If the husband and wife own a business but the earnings are
reported in only one party, what do you do when the couple
divorces and the person without any reported earnings becomes
disabled? Social Security allows you to reallocate your wages
so that the divorced spouse who is disabled (and who initially
did not have any reported earnings) can obtain quarters of credit
for Title II. This is merely a shifting of earnings from one party
to the other. Further, there is a one year statute of limitations onthis.
Therefore, just because your spouse did not take a wage,
this does not mean that that person cannot obtain Title II ben-
efits.
The exception to the 20/40 rule is that if a person is 30 years
old or younger, you only need half of the quarters required
compared to someone over 30 years old. You can get Title II
benefits from as little as six quarters of credit.
Trends in Social Security Disability
Tom Bush, as the President of NOSSCR as well as the Chief Judge at the Appeals Council and the Associate Commissioner
of OHA (second to Apfel), spoke about the upcoming trends in
Social Security. The message was that with a decreased num-
ber of filings and decreased time in waiting for a hearing, attor-
ney fees are also going to be decreased. Further, there has been
an increase in favorable decisions at DDS at the first level which
is one of the goals of the process unification to have more
uniform decisions and to eliminate cases that should have been
approved at the first level.
The percentage of cases for favorable decisions by ALJs has
decreased too. In fact, in 1995 it was 65 percent and only two
years later in 1997 it was 54 percent and I am sure it is still
steadily declining.
There are 14,000 employees at OCO (originally ODIO). They
are becoming more automated in order to process claims faster.
It is interesting to note that 900 of the 1,400 district offices
now have a direct phone line to OCO.
The processing time at OCO has decreased from 30 days in
1997 (when they processed 462,000 claims) to 28 days now
where they project that they will process 500,000 claims. Fur-
ther, they are streamlining their process and hope to decrease
the steps to process a case from 14 down to six.
It is very important, we were told, that when we get paid, we
need to check the Social Security number on the check to make
sure that it matches the Social Security number of the claim-
ant. Apparently, if there is a keypunch error by Social Security
and they enter the wrong number, there will be two checksgenerated for attorney fees.
The OCO is also planning to be completely paperless by the
year 2,000. They receive over 100,000 pieces of mail each
week. The game plan is to scan all of these documents into a
computer so that things such as a Birth Certificate or 1696 can
be easily pulled up on the computer without having to actually
physically search a file.
Because the trend for process unification is to have uniform
decisions throughout all levels, it is important that we represen
the claimants at the earliest possible level. We should never
discourage claimants from seeking representation until “theyhave been denied two times.” The goal by DDS is to have more
people be granted at the DDS level which is apparently more
cost-effective and less time-consuming than at the OHA level
The Chief ALJ at OHA indicated that because we are living in
a balanced budget world, you are going to see a tightening
down of the number of cases that are paid. He believes tha
despite this, his main goal is that justice will be served on all of
the cases that are adjudicated. He defined justice (when he was
a general practitioner) as when he won the case and indicated
that when he lost the case, justice was circumvented.
There are currently 437,000 cases pending at the AppealsCouncil with the average waiting time at 18 months now. He
said that they are going toward computer automation but did
not discuss exactly what he meant by that. He said that all of
the ALJs will be getting lap-top computers.
One of the attorneys at the seminar who spoke indicated tha
one of his friends who is an ALJ, was sent down to the Ap-
peals Council on a temporary basis to help push some of the
decisions up. He indicated that he had just about enough time
to check for grammatical errors (less than five minutes) for
each decision that was written by a staff person. In other words
apparently the staff person writes up the decision and the ALJ
has very little input other than just to give a cursory review of
the decision and the memo that was generated as the basis for
the decision. The ALJ did not look at the file unless it was
recommended for remand or reversal. He said that the ALJs
are required to push out literally hundreds of decisions a week
Consultative Examinations
Are you turning the lemon into lemonade?
This was one of the best presentations at the San Diego semi
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nar. It talked about what to do when a CE was scheduled. One
of the first things is to find out why it was scheduled. If the
reason is simply that DDS wants another opinion, you can cite
42 USC 423(D) which states that the Commissioner of Social
Security shall make every reasonable effort to obtain from the
individual’s treating physician all medical evidence including
diagnostic testing necessary in order to properly make a deter-
mination prior to evaluating medical evidence obtained from
any other source on a consultative basis.
In other words, if Social Security simply wants another opin-
ion because the one that has already been provided by your
attending physician shows that the claimant is disabled, they
are not allowed to request another CE.
The speaker talked about the importance of keeping a track
record on all CEs to determine whether it is one in which you
want to call DDS and obtain another CE or one in which you
can reasonably live with.
The treating physician is always the preferred source for aCE (20 CFR 404.151 9(H)). Therefore, when a CE is ordered,
if the claimant’s attending physician will perform a CE, you
have statutory authority to have this physician do the CE in-
stead of the one picked by Social Security.
You can ask for a change in the CE by contacting DDS. Do
not be afraid to do so. I routinely do so in psychological cases
when a case is referred to Dr. Talasila and Dr. Cappone in
Saginaw. I do not mind Dr. Plummer, although I do not think
he does a very in-depth evaluation.
The speaker also stressed that we should do a better job
preparing our clients for the CE. She said we should make surethat the claimant talks about all of their impairments without
exaggerating or sugarcoating. They should take all of their aids
to the CE, i.e., cane or eyeglasses. We should also describe the
nature of the CE, i.e., what the doctors put a claimant through
during a typical physical exam or a psychological evaluation.
One interesting point is that the speaker indicated we should
write to the CE in advance to do three things:
1. Send any pertinent evidence.
2. Summarize the evidence that you sent.
3. Give the CE a theory of your case.
Hopefully, the CE will review your brief letter that accompa-
nies the evidence to “get them up to speed” on the impairments
the claimant has. Further, it puts the doctor on notice that you
will be looking at his report and he may be less inclined to run
roughshod over your client.
The speaker talked about a couple ALJs who were upset
with the attorney by contacting the CE indicating that by giv-
ing their “spin” on the case it is not unethical to contact the CE.
The Appeals Council believes that providing the CE with re-
ports and framing it in the terms of the attorney’s “spin” on
how that claimant should be disabled is not unethical.
We talked briefly about subpoenaing the CE at the hearing. If
the CE does not show up at the hearing, you can move to strike
the report. However, as you know, in this circuit it is very
difficult, if not impossible, to have the ALJ sign the Subpoena
for the CE to attend the hearing.
The speaker talked about advising the client to refuse to at
tend the CE. This should be done when:
♦ There is enough evidence from the treating source al-
ready in the file.
♦ You have reasonable belief that the scheduled CE will
only hurt your case.
The rationale for refusing your client to attend a CE is that:
n The CE is premature since the regulations allow you to
recontact the treating physician for additional informa-
tion or clarification per 404.1512(E) which states:
“When the evidence we receive from your treating phy
sician or psychologist is inadequate for us to determine
whether you are disabled, we will need additional infor
mation to reach a determination or a decision. To obtain
the information we will take the following actions:
“1. We will first recontact your treating physician or
psychologist or other medical source to determin
whether the additional evidence we need is readily
available. We will seek additional evidence or clarifi
cation from your medical source when the report
from your medical source contains a conflict or am- biguity that must be resolved, the report does no
contain all the necessary information, or does no
appear to be based on medically acceptable clinica
or laboratory diagnostic techniques.”
n If you get a letter from the claimant’s attending physi-
cian outlining his objection to the CE.
The speaker talked about having a case dismissed when she
advised her client to refuse a CE. The Appeals Council said tha
this was an improper dismissal remanding it back to the ALJ.
Winning at the Appeals Council
The speaker indicated that you have to determine whether it
is easier for you to win at the Appeals Council or at the Distric
Court. Obviously, if it is very difficult to win a case at Distric
Court you want to put all of your effort into winning or re-
manding at the Appeals Council.
Federal Court is an appropriate forum to bring a case where
you have the law on your side or you have strong medical. The
Appeals Council is a better forum for technical issues.
The speaker at the Appeals Council reminded us you are writing
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to a non-attorney who does not understand the technical as-
pects of the law. He said do not bother wasting your time citing
case law. The only thing that these people know are the SSRs.
In fact, they know them much better than the ALJs. There-
fore, you want to focus on these. Also, another ripe area is to
look at inconsistencies within the decision itself, i.e., anyplace
where the Judge contradicts himself either in the written deci-
sion or comparing his written decision with his PRTF.
One of the most common issues to prevail in District Court
is a failure by the ALJ to articulate his reasons for the denial.
If a person is close to 50 years old and the ALJ says that the
claimant can only do sedentary work once the person turns 50
(in the cases pending at the Appeals Council), you have a strong
argument that the claimant is now disabled since they have
turned 50 years old using res judicata principals.
A shortcut to winning in a District Court case is to:
n Document that the claimant cannot perform their past
relevant work.
n Then argue that there is no explanation as to the ALJ’s
RFC, usually a light RFC or greater. This way, you do
not even reach the treating physician rule, the credibility
issues, the grids, or impairment listings, etc.
The remaining part of the seminar dealt with the 1996 SSRs.
It was again emphasized at this seminar (as well as the one in
Chicago) how important it is to know the 1996 rulings. He
highlighted some of the most important gems from the SSRs
which are as follows:
1. SSR 96-2p: “For a medical opinion to be well-supported
by medically acceptable clinical and laboratory diagnostic
techniques, it is not necessary that the opinion be fully sup-
ported by such evidence.”
The evidence does not have to be consistent with all other
evidence as long as there is no other substantial evidence in
the case record that contradicts or conflicts with the opinion.
In many cases, a treating source’s medical opinion will be
entitled to the greatest weight and should be adopted, even if
it does not meet the test for controlling weight.
In some cases, a treating source’s medical opinion will be
given controlling weight.
2. SSR 96-4p: You can use this rule to keep the case in the
grids or get it out of the grids if you believe the claimant
meets a listing. An individual’s symptoms, however, can cause
limitations or restrictions that are classified as exertional, non-
exertional or a combination of both. For example, pain can
result in an exertional limitation if it limits the ability to per-
form one of the strength activities, i.e., lifting, or a non-
exertional limitation if it limits the ability to perform non-
strength activities, i.e., fingering or concentrating.
3. SSR 96-5p: Medical sources (such as CEs) may provide
opinions that the individual is limited to sedentary, light, etc.
work or similar statements that appear to use the terms set
out in the regulations and rulings to describe the exertional
levels of maximum sustained work capability.
The adjudicators must not assume that a medical source us-
ing terms such as, sedentary and light is aware of our definitions of these terms. The judgment regarding the extent to
which an individual is able to perform exertional ranges of
work goes beyond medical judgment regarding what an indi-
vidual can still do and is a finding that may be dispositive o
the issue of disability. In other words, if the CE indicates tha
the claimant can perform “light work” do they mean the legal
standard of light work or do they just mean that the person
can do a very minimal exertional type of work. The claimant’s
attorney is allowed to send interrogatories to the medical
source to determine whether they understand the statutory
definition of light work.
OHA has specific requirements for recontacting treatingsources. The regulations state that “because treating source
evidence is important, if the evidence does not support a
treating source’s opinion on any issue reserved by the
Commissioner, i.e., whether the person is disabled, and
the adjudicator cannot ascertain the basis of the opinion
from the case record, the adjudicator must make every
reasonable effort to recontact the source for clarifica-
tion of the reasons for the opinion.”
4. SSR 96-7p: This is one of the more common reasons that
a case is remanded by the Appeals Council. This is the cred
ibility ruling. In a footnote it states: “The adjudicator mustdevelop evidence regarding the possibility of a medically de
terminable mental impairment when the record contains in
formation to suggest that such an impairment exists, and the
individual alleges pain or other symptoms, but the medical
signs and laboratory findings do not substantiate any physi-
cal impairment capable of producing the pain or other symp-
tom. In other words, the ALJ must look at the emotional
factors regarding pain.”
This ruling lists the seven factors that the adjudicator “must
consider in addition to the objective medical evidence when
assessing the credibility of the individual’s statements.” Rarely
does the decision ever state the factors. Further, the rulingindicates that it is not sufficient to make a conclusory state-
ment, that the individual’s allegations have been considered
or that the allegations are not credible. It is also not enough
for the adjudicator simply to recite the factors that are de-
scribed in the regulations for evaluating symptoms.
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1 001-00 THRU 028-24 (410) 966-2930 (410) 966-2933 (410) 966-2916
2 028-25 THRU 057-26 (410) 966-2958 (410) 966-4591 (410) 966-2946
3 057-27 THRU 086-46 (410) 966-2986 (410) 966-4592 (410) 966-2973
4 086-47 THRU 117-18 (410) 966-2721 (410) 966-0884 (410) 966-2706
5 117-19 THRU 145-26 (410) 966-2753 (410) 966-4594 (410) 966-2739
6 145-27 THRU 171-22 (410) 966-2783 (410) 966-4328 (410) 966-2768
7 171-23 THRU 197-52 (410) 966-2861 (410) 966-1527 (410) 966-64658 197-53 THRU 219-30 (410) 966-6471 (410) 966-0490 (410) 966-6469
9 219-31 THRU 230-50 (410) 966-6513 (410) 966-3023 (410) 966-6472
10 230-51 THRU 236-98 (410) 966-1662 (410) 966-5260 (410) 966-1648
11 236-99 THRU 245-98 (410) 966-1691 (410) 966-5261 (410) 966-1676
12 245-99 THRU 253-90 (410) 966-2628 (410) 966-5262 (410) 966-2614
13 253-91 THRU 261-95 (410) 966-3415 (410) 966-0621 (410) 966-3400
14 261-96 THRU 272-38 (410) 966-3436 (410) 966-5264 (410) 966-3430
15 272-39 THRU 293-32 (410) 966-3474 (410) 966-5265 (410) 966-3460
16 293-33 THRU 312-22 (410) 966-2521 (410) 966-5267 (410) 966-2507
17 312-23 THRU 334-58 (410) 966-2551 (410) 966-5273 (410) 966-2536
18 334-59 THRU 360-26 (410) 966-2581 (410) 966-5274 (410) 966-2565
19 360-27 THRU 378-48 (410) 966-2375 (410) 966-1398 (410) 966-2362
20 378-49 THRU 396-62 (410) 966-2404 (410) 966-2386 (410) 966-2391
21 396-63 THRU 406-23 (410) 966-2433 (410) 966-2382 (410) 966-2419
22 406-24 THRU 414-62 (410) 966-3933 (410) 966-5644 (410) 966-3919
23 414-63 THRU 424-34 (410) 996-3962 (410) 966-1537 (410) 966-3948
24 424-35 THRU 431-45 (410) 996-3992 (410) 966-1542 (410) 966-3978
25 431-46 THRU 439-41 (410) 966-2223 (410) 966-0244 (410) 966-2209
26 439-42 THRU 456-25 (410) 966-2251 (410) 966-5570 (410) 966-2238
27 456-26 THRU 468-26 (410) 966-2280 (410) 966-1775 (410) 966-2267
28 468-27 THRU 489-22 (410) 966-2839 (410) 966-0229 (410) 966-2824
29 489-23 THRU 506-38 (410) 966-2870 (410) 966-4656 (410) 966-3123
30 506-39 THRU 524-29 (410) 966-2903 (410) 966-4341 (410) 966-2885
31 524-30 THRU 537-42 (410) 966-3051 (410) 966-4658 (410) 966-3037
32 537-43 THRU 550-29 (410) 966-3016 (410) 966-1867 (410) 966-3002
33 550-30 THRU 559-82 (410) 966-3080 (410) 966-1873 (410) 966-3066
34 559-83 THRU 571-99 (410) 966-2483 (410) 966-4650 (410) 966-2467
35 572-00 THRU 582-69 (410) 966-4111 (410) 966-4652 (410) 966-2497
36 582-70 THRU 728-14 (410) 966-4140 (410) 966-4651 (410) 966-4126
Editor’s Note: For those of you who have been having difficulty getting your attorneys fees on Title II cases and do not know whom
to call, below is a list of the Module telephone numbers from ODIO. The numbers are sorted according to the first three digits of the
claimant’s Social Security Number. Often, the faxing of a 1696 form (Appointment of Representative Form) or a fee agreement will
clear up any payment problems. Our thanks to Thomas M. Stellard for providing the list.
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OODDIIOODDIIOODDIIOODDIIOODDIIOO MMoodduullee TTOO MMoodduullee TTOO MMoodduullee TTOO MMoodduullee TTOO MMoodduullee TTeelleepphhoonnee NNuummbbeerrsseelleepphhoonnee NNuummbbeerrsseelleepphhoonnee NNuummbbeerrsseelleepphhoonnee NNuummbbeerrsseelleepphhoonnee NNuummbbeerrss
OODDIIOODDIIOODDIIOODDIIOODDIIOO MMoodduullee TTOO MMoodduullee TTOO MMoodduullee TTOO MMoodduullee TTOO MMoodduullee TTeelleepphhoonnee NNuummbbeerrsseelleepphhoonnee NNuummbbeerrsseelleepphhoonnee NNuummbbeerrsseelleepphhoonnee NNuummbbeerrsseelleepphhoonnee NNuummbbeerrss