Practical Considerations on Handling a Social Security Disability Case

Suzanne Villalón-Hinojosawww.texasdisabilityadvocates.com

Social Security Disability 2011November 18, 2011

New Orleans

Get the Medical Records

• You (the claimant) must provide medical evidence.– 20 CFR § 404.1512(c)

• We (SSA) will develop your complete medical history for at least the 12 months preceding the month in which you file your application.– 20 CFR § 404.1512(d)

• A representative shall act with reasonable promptness to obtain the evidence that the claimant wants to submit.– 20 CFR § 404.1740(b)(1)

• The ALJ should initiate development if additional evidence is needed.– HALLEX I-2-1-1

Recent/Current MEDICAL TREATMENT Name: Date: __________ Other Names Used (maiden, prior marriage, nickname): ______________________________________________________________________

1. MAIN DOCTOR:______________________________________________ Address:____________________________________________________ ____________________________________________________ Phone:_____________________________________________________ Medical Problem Treated:______________________________________ Date Last Seen:______________________________________________ 2. OTHER DOCTOR SEEN:____________________________________

Address:_______________________________________________ ____________________________________________________ Phone:_____________________________________________________ Medical Problem Treated:______________________________________ Date Last Seen:______________________________________________ 3. OTHER DOCTOR SEEN:____________________________________ Address:____________________________________________________ ____________________________________________________ Phone:_____________________________________________________ Medical Problem Treated:______________________________________ Date Last Seen:______________________________________________ 4. LAST HOSPITALIZATION:__________________________________

Address:_________________________________________________ Date Admitted:___________________________________________

**LIST OTHER DOCTORS/HOSPITALS WITH CONTACT INFORMATION ON BACK**

Most clients will complete a simple form with provider information , especially at the beginning of the case.

Get a Medical Source Statement

• We give more weight to opinions from treating source.– Treating sources:

• Provide a detailed, longitudinal picture of your medical impairments

• Bring a unique perspective to the medical evidence

• We will give a treating source opinion controlling weight.– It is well supported– It is not inconsistent with the other evidence

• The ALJ must consider each separate opinion in a MSS.– SSR 96-5p

Use terms that the VE understands in a MSS

Mental Capacities• No/mild loss:

– No significant loss of ability in the named activity; can sustain performance for > 2/3 of an 8-hour workday. 

• Moderate loss:– Some loss of ability in the named

activity but still can sustain performance for 1/3 to 2/3 of an 8-hour workday.  

• Marked loss:– Substantial loss of ability in the named

activity and can sustain performance less than 1/3 of an 8-hour workday. 

• Extreme loss:– Complete loss of ability in the named

activity; cannot sustain performance during an 8-hour workday.

Lift, Carry, Bend, Stoop• Rarely/None

– No sustained/8hrs

• Occasionally– <1/3 of 8 hrs

• Frequently– 1/3-2/3 of 8 hrs

• Constantly– >2/3 of 8 hrs

Judge Name Decisions Total Dispositions

Fully Favorable

Partially Favorable

Approval Rate Unfavorable Denial Rate Year

VANDERHOOF,

GARY L805 924 188 54 26% 563 61% 2005

VANDERHOOF,

GARY L875 1,031 207 31 23% 637 62% 2006

VANDERHOOF,

GARY L943 1,189 152 35 16% 756 64% 2007

VANDERHOOF,

GARY L835 1,000 142 29 17% 664 66% 2008

Full Name Office State Approval

Vanderhoof, Gary L

Alexandria Louisiana 35%

Vanderhoof, Gary L

Fort Smith Arkansas 35%

Vanderhoof, Gary L

San Antonio Texas 35%

www.DisabilityJudges.com

www.oregonlive.com/special/index.ssf/2008/12/social_security_database.html

Know your Judge• Find out the win/loss

rate of your ALJ– Disability Judges.com– Oregonlive.com

Prepare your client for the hearing

• Who will do what?– They will testify…not you.– The Judge will talk directly to your client– But you will argue and also ask questions– Your client should know what they might

hear from the experts

• Adverse evidence• Bottom-line:

– no surprises

Step 4 is the new Step 2

• The burden of proof rests with the claimant to establish that he is unable to perform his previous work.– Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987)

• SSR 82-62 does not shift the burden of proof at Step 4.

• Proposed new ruling will make it harder for the claimant to meet his/her burden and easier for an ALJ to deny a a claim at Step 4.

Carey v. Apfel230 F.3d 131 (5th Cir. 2000)

• Claimant should not be permitted to scan the record for implied or unexplained conflicts between the specific testimony of an expert witness and the voluminous provisions of the DOT and then present that conflict as reversible error, when the conflict was not deemed sufficient to merit adversarial development in the administrative hearing.

DOT vs. VE

• Claimants and their representatives cannot be presumed to know instantly the precise reasoning levels and temperaments factors applicable to those jobs.

• However, claimants have the opportunity to cross examine vocational experts, and they can test an expert's opinion that there is no conflict with the DOT by routinely asking them to recite for the record the reasoning abilities and worker trait characteristics that the DOT attributes to each job that the vocational expert testifies that a hypothetical person with the same limitations as the claimant can still perform.

• If any of the DOT job requirements appear contrary to the limitations posited by the administrative law judge's hypothetical question, claimants can then develop their points through cross-examination.

Veal v. SSA 618 F.Supp.2d 600 (E.D.Tex. May 21, 2009)

Comparing DOT data with the RFC

Direct Conflict:Reasoning levels

• 3 Apply commonsense understanding to carry our instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.

• 2 Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.

• 1 Apply commonsense understanding to carry out simple one or two step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job.

Indirect Conflict:Definition of Temperaments• D DIRECTING, controlling, or planning

activities of others. • R Performing REPETITIVE or short cycle

work • I INFLUENCING people in their

opinions, attitudes, or judgments. • V Performing a VARIETY of duties • E EXPRESSING personal feelings. • A Working ALONE or apart in physical

isolation from others. • S Performing effectively under STRESS. • T Attaining precise set limits,

TOLERANCES, and standards. • U Working UNDER specific instructions • P Dealing with PEOPLE. • J Making JUDGEMENTS and decisions

1991 Revised Handbook for Analyzing Jobs (RHAJ) provides detailed descriptions for temperaments

Transferability

Work Fields• Work Field: Indicates the

techniques or technologies through which are essential to the performance of an

• occupation. It is expressed as a three-digit code, with the first two digits of a code indicating a general category

• of technology or technique and the entire three-digit code indicating a specific category of technology or

• technique, with each successive digit corresponding to a more precise set of occupations.

MPSMS• Materials, Products, Subject Matter,

and Services (MPSMS): Indicates the materials processed, final products

• created, data or subject matter dealt with, or services rendered through performance of job duties. The MPSMS

• code is designated by a three digits, with the first indicating if the occupation is within the category of materials

• and products, subject matter, or services, the second indicating a more specific occupational group, and the third

• a precise occupational category.

What should you ask the VE?

• Specific limitations – From client testimony corroborated by MEO– From any MSS

• Treating, SAMC, CE, ME

• DOT data (PRW & Other jobs)– Numbers/SVP– Reasoning levels– Work Fields & MPSMS

• Indirect conflicts with the DOT– Unilateral upper extremity limitations/abilities – Definition of temperaments from the RHAJ– Sit/stand option (SSR 83-12)

• How does the VE know jobs exists?– Familiarity with resource materials (404.1566) other than the DOT (See

404.1566, local industrial publications) – Job placement experience– Labor market analysis