If you feel that you were treated unfairly by the Social Security judge, you can file an “Unfair Treatment Complaint” and ask that Social Security review what happened. Someone who was not involved in your case will review your complaint and take action, if appropriate. While there is no guarantee that Social Security will find that action is needed, you will be notified before Social Security closes the matter.

Keep in mind that filing an unfair treatment complaint does not appeal the judge’s decision. If you were denied and want to appeal the denial, you still need to complete an appeal. At the time of this writing, the form to appeal a hearing denial is the “Request for Review of Hearing Decision/Order.” However, the decision should describe the form(s) and process to follow to appeal your decision. If you file your complaint along with your appeal of the hearing decision, the Appeals Council will address both the appeal and the complaint in its decision.

Here are the steps to take to file the Unfair Treatment Complaint:

You should give us your complaint in writing. But you also can tell us about your complaint, and we will write it down for you. Please give us as many details as you can, including:

• Your name, address and telephone number;
• Your Social Security number;
• Who treated you unfairly;
• How you think you were unfairly treated;
• When you think you were unfairly treated;
• The actions or words you thought were unfair;
• Who else saw or heard the unfair treatment; and
• If you are making the complaint for someone else, also give us your relationship to that person, and your name, address and telephone number.

You can ask for help or submit the complaint at any Social Security office. Be sure to take two copies and get your copy stamped by the counter attendant as proof of providing the complaint to Social Security. You can also send your complaint directly to the Social Security Appeals Council at the following address:

The Chief Administrative Law Judge
Office of Disability Adjudication and Review
5107 Leesburg Pike, Suite 1608
Falls Church, VA 22041-3255

Here again, make sure to send the complaint certified, return receipt requested (or equivalent) so you have proof of filing the complaint.

This includes consideration of the following issues:

• Terminal illness.
• Wounded warrior.
• Compassionate allowance.
• Dire need.
• Suicidal/homicidal ideation cases.

Here is a link to the HALLEX for the form. Note: this a form Social Security uses internally. You do not need to use this to request consideration as a critical case. All you need to do is write a letter to the SSA office working on your case and state why the case should be expedited. Of course, the reason(s) should fall into one areas discussed above.

Here are some good tips:

1. Timely submit the form ssa-1696 and fee agreement.
2. Timely alert the hearing office of any change of address or phone number for either yourself or the claimant.
3. Do not submit duplicative evidence.
4. Submit evidence as far in advance of the hearing as possible, using electronic records express.
5. Before faxing evidence, check to ensure the evidence you are submitting matches the claimant.
6. Make sure the barcode is the first item faxed in order to ensure proper identification of all records.

Check out Best Practices for Social Security representatives.

Social Security separates jobs into groups based on physical requirements: sedentary, light, medium, and heavy. For many individuals, the outcome of a case depends on the number of sedentary jobs available.

This is often an issue in back injury cases where Light work is eliminated, but sedentary jobs are still a possibility.  If there are enough of them. If a job can be put in the Light category, it may be eliminated based on physical limitations.

So, here is the question: can a sit down job requiring no more than lifting 10 pounds (typically suggesting Sedentary work) ever be a Light job? Yes, it can!

Many practitioners may be surprised by this. We have been taught (and we hear over and over) that sedentary work means: lifting no more than 10 pounds occasionally (up to 1/3 of an 8 hour day) or less than 10 pounds frequently (up to 2/3 of an 8 hour day) AND standing or walking no more than 2 hours out of 8.

So how can a job with almost no walking and lifting less than 10 pounds be light? Due to a “production rate pace.”

The Selected Characteristics of Occupation defines Light work as:

Light Work involves exerting up to 20 pounds of force occasionally, or up to 10 pounds of force frequently, or a negligible amount of force constantly to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job/occupation is rated Light Work when it requires: (1) walking or standing to a significant degree; (2) sitting most of the time while pushing or pulling arm or leg controls; or (3) working at a production rate pace while constantly pushing or pulling materials even though the weight of the materials is negligible. (The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.)

So, a sit down job where an individual works at a production pace or is constantly pushing or pulling, such as on an assembly line or in an industrial setting, is LIGHT work, not sedentary, even though standing/walking and lifting/carrying are negligible.

Here is a list of the 100 conditions (as of 10/13/11) which Social Security now considers eligible for the Compassionate Allowance program which can result in a very fast approval. Recently added conditions are in bold. An up to date list is available here.

1. Acute Leukemia
2. Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
3. Alexander Disease (ALX) – Neonatal and Infantile
4. Alstrom Syndrome
5. Amegakaryocytic Thrombocytopenia
6. Amyotrophic Lateral Sclerosis (ALS)
7. Anaplastic Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
8. Aortic Atresia
9. Astrocytoma – Grade III and IV
10. Ataxia Telangiectasia
11. Batten Disease
12. Bilateral Retinoblastoma
13. Bladder Cancer – with distant metastases or inoperable or unresectable
14. Bone Cancer – with distant metastases or inoperable or unresectable
15. Breast Cancer – with distant metastases or inoperable or unresectable
16. Canavan Disease (CD)
17. Cerebro Oculo Facio Skeletal (COFS) Syndrome
18. Chronic Myelogenous Leukemia (CML) – Blast Phase
19. Creutzfeldt-Jakob Disease (CJD) – Adult
20. Cri du Chat Syndrome
21. Degos Disease, Systemic
22. Early-Onset Alzheimer’s Disease
23. Edwards Syndrome (Trisomy 18)
24. Eisenmenger Syndrome
25. Endomyocardial Fibrosis
26. Ependymoblastoma (Child Brain Tumor)
27. Esophageal Cancer
28. Farber’s Disease (FD) – Infantile
29. Fibrodysplasia Ossificans Progressiva
30. Friedreichs Ataxia (FRDA)
31. Frontotemporal Dementia (FTD), Picks Disease -Type A – Adult
32. Fukuyama Congenital Muscular Dystrophy
33. Gallbladder Cancer
34. Gaucher Disease (GD) – Type 2
35. Glioblastoma Multiforme (Adult Brain Tumor)
36. Glutaric Acidemia Type II (Neonatal)
37. Head and Neck Cancers – with distant metastasis or inoperable or uresectable
38. Heart Transplant Graft Failure
39. Heart Transplant Wait List, 1A/1B
40. Hemophagocytic Lymphohistiocytosis (HLH), Familial Type
41. Hypoplastic Left Heart Syndrome
42. Idiopathic Pulmonary Fibrosis
43. Infantile Neuroaxonal Dystrophy (INAD)
44. Infantile Neuronal Ceroid Lipofuscinoses
45. Inflammatory Breast Cancer (IBC)
46. Junctional Epidermolysis Bullosa, Lethal Type
47. Kidney Cancer – inoperable or unresectable
48. Krabbe Disease (KD) – Infantile
49. Large Intestine Cancer – with distant metastasis or inoperable, unresectable or recurrent
50. Late Infantile Neuronal Ceroid Lipofuscinoses
51. Left Ventricular Assist Device (LVAD) Recipient
52. Leigh’s Disease
53. Lesch-Nyhan Syndrome (LNS)
54. Liver Cancer
55. Mantle Cell Lymphoma (MCL)
56. Maple Syrup Urine Disease
57. Merosin Deficient Congenital Muscular Dystrophy
58. Metachromatic Leukodystrophy (MLD) – Late Infantile
59. Mitral Valve Atresia
60. Mixed Dementias
61. MPS I, formerly known as Hurler Syndrome
62. MPS II, formerly known as Hunter Syndrome
63. MPS III, formerly known as Sanfilippo Syndrome
64. Mucosal Malignant Melanoma
65. Neonatal Adrenoleukodystrophy
66. Niemann-Pick Disease (NPD) – Type A
67. Niemann-Pick Disease-Type C
68. Non-Small Cell Lung Cancer – with metastases to or beyond the hilar nodes or inoperable, unresectable or recurrent
69. Ornithine Transcarbamylase (OTC) Deficiency
70. Osteogenesis Imperfecta (OI) – Type II
71. Ovarian Cancer – with distant metastases or inoperable or unresectable
72. Pancreatic Cancer
73. Patau Syndrome (Trisomy 13)
74. Peritoneal Mesothelioma
75. Pleural Mesothelioma
76. Pompe Disease – Infantile
77. Primary Cardiac Amyloidosis
78. Primary Progressive Aphasia
79. Progressive Multifocal Leukoencephalopathy
80. Pulmonary Atresia
81. Rett (RTT) Syndrome
82. Salivary Tumors
83. Sandhoff Disease
84. Single Ventricle
85. Small Cell Cancer (of the Large Intestine, Ovary, Prostate, or Uterus)
86. Small Cell Lung Cancer
87. Small Intestine Cancer – with distant metastases or inoperable, unresectable or recurrent
88. Spinal Muscular Atrophy (SMA) – Types 0 And 1
89. Spinocerebellar Ataxia
90. Stomach Cancer – with distant metastases or inoperable, unresectable or recurrent
91. Subacute Sclerosis Panencephalitis
92. Tay Sachs Disease – Infantile Type
93. Thanatophoric Dysplasia, Type 1
94. Thyroid Cancer
95. Tricuspid Atresia
96. Ullrich Congenital Muscular Dystrophy
97. Ureter Cancer – with distant metastases or inoperable, unresectable or recurrent
98. Walker Warburg Syndrome
99. Wolman Disease
100. Zellweger Syndrome

The term “medical sources” refers to both “acceptable medical sources” and other health care providers who are not “acceptable medical sources.” See 20 CFR 404.1502 and 416.902.

Under our current regulations, “acceptable medical sources” are:

• Licensed physicians (medical or osteopathic doctors);
• Licensed or certified psychologists. Included are school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing mental retardation, learning disabilities, and borderline intellectual functioning only;
• Licensed optometrists, for the measurement of visual acuity and visual fields (for claims under title II, we may need a report from a physician to determine other aspects of eye disease);
• Licensed podiatrists, for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle; and
• Qualified speech-language pathologists, for purposes of establishing speech or language impairments only.

See 20 CFR 404.1513(a) and 416.913(a).

Basically, a medical provider had to have MD (or DO, or PhD) after their name to qualify as a medical source. This left nurses, therapists, chiropractors, teachers, counselors, among other providers out in the cold as far as having their evidence conisidered by Social Security.

Social Security Ruling (SSR) 06-03p changed that by creating a new class: “other sources.” 

In addition to evidence from “acceptable medical sources,” we may use evidence from “other sources,” as defined in 20 CFR 404.1513(d) and416.913(d), to show the severity of the individual’s impairment(s) and how it affects the individual’s ability to function. These sources include, but are not limited to:

• Medical sources who are not “acceptable medical sources,” such as nurse practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapists; and
• “Non-medical Sources” including, but not limited to:
• Educational personnel, such as school teachers, counselors, early intervention team members, developmental center workers, and daycare center workers;
• Public and private social welfare agency personnel, rehabilitation counselors; and
• Spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, clergy, and employers.

Information from these “other sources” cannot establish the existence of a medically determinable impairment. Instead, there must be evidence from an “acceptable medical source” for this purpose. However, information from such “other sources” may be based on special knowledge of the individual and may provide insight into the severity of the impairment(s) and how it affects the individual’s ability to function.

SSA will now consider evidence from other sources. And not only medical sources: SSA also has to consider evidence from rehab counselors, parents and family members, clergy, employers.

If there is a catch, it is that an “acceptable medical source” is still needed for the diagnosis – which is sensible. However, in some cases where the symptoms are clearly disabling, but the cause is unclear, obtaining a clear diagnosis from an acceptable medical source can be difficult.

However, once there is a diagnosis, the extent of the condition and the limitations can be developed through other sources of evidence. Keep in mind though that this Ruling only requires that SSA consider these other sources of evidence. It does not mean that Social Security will find you disabled just because your paper boy said so. Evidence from medical professionals and from acceptable medical sources is still usually better evidence and more likely to convince Social Security. SSR 06-03p just lets you also provide additional other evidence.

How will Social Security consider evidence from other sources? Here are some factors SSA may use in determining the weight given to evidence from other sources:

Although the factors in 20 CFR 404.1527(d)  and  416.927(d)  explicitly apply only to the evaluation of medical opinions from “acceptable medical sources,” these same factors can be applied to opinion evidence from “other sources.” These factors represent basic principles that apply to the consideration of all opinions from medical sources who are not “acceptable medical sources” as well as from “other sources,” such as teachers and school counselors, who have seen the individual in their professional capacity. These factors include:

• How long the source has known and how frequently the source has seen the individual;
• How consistent the opinion is with other evidence;
• The degree to which the source presents relevant evidence to support an opinion;
• How well the source explains the opinion;
• Whether the source has a specialty or area of expertise related to the individual’s impairment(s), and
• Any other factors that tend to support or refute the opinion.

Here is where therapists and nurses records can really shine. Often these providers have had the most frequent and longest contact with patients and can provide the most detailed opinion of how their conditions affect what they can and cannot do.

So go ahead and get those therapists and other records to Social Security. It’s good evidence!

Thank you to everyone who writes in or comments on posts. You are reason I created this blog. You are the reason for all of this!

The one question I get asked most is:

Can I win a disability case? What do you think of my chances?

Sometime this comes with a short description of the disabilities, sometimes a long one.

I really wish I could answer this. There are ethical and liability issues limiting what I can say. There is a bigger issue though: a case is not one thing. It is *all* the evidence that Social Security considers.

A Social Security file is often between 200 – 800 pages. Social Security uses all of that information to review your case. A lawyer reviews all that information to look for what’s good and what can blow up in your face. It is ALL important.

Ok, but here are the big things in my case. They give you a pretty good idea of what’s going to happen.

The thing is, details matter. A lot! You probably remember that when the space shuttle Challenger blew up, the cause was a failure of a small o-ring. Just one small part. The Columbia disaster was caused by a piece of foam insulation. All the science, all the engineering, all the testing and checking, and yet small parts brought down some of our greatest achievements.

While disability cases are not as complicated as a launching a shuttle, they are depend on how all the pieces of evidence fit together.

Not just some of the pieces, not a description of the pieces, but the actual evidence itself. So, without looking at the actual evidence in the file, I cannot tell you what your chances are. I can’t tell you if you are likely to be approved or not. A lot of people who write in clearly have cases worth pursuing. I believe that their conditions keep them from being able to work. I think they should not give up.

However, what are their chances? I can’t answer that. Because it is not a matter of gut feelings. It is not a matter of whether I feel they should be approved. The only thing that really determines whether someone has a good case or bad case is the evidence. And until I am working with someone on their case and have reviewed all the evidence, I just don’t know if there is some damaged o-ring or bit of insulation that can keep a case from succeeding.

Thank your understanding. Thank you for reading. And thank you all of your comments.

photo credit: Tomasz Stasiuk

Starting at age 50, and then again at age 55 and 60, Social Security lowers the requirements for proving disability. The rationale is that the older you are, the harder it is to work in a job that you have never done before.

• After age 50, Social Security can approve you for disability benefits even though you are able to do some type of work.
• The older you are, the more physically demanding the work can be and still allow you qualify for disability benefits.

However, this is not a free pass and do not leave this article before you read the “gotchas” at the bottom.

Medical-Vocational Guidelines

The reduced requirements for proving Social Security disability cases are contained in the “Medical-Vocational Guidelines” also known as the “Grid Rules.” It is important to understand where the Grid Rules fit in with Social Security’s disability evaluation process.

Take a moment to review the 5 step sequential evaluation process. These are the 5 steps that Social Security uses to decide disability cases for adults.

1. Are you working (at an SGA level)?
2. Is your impairment severe?
3. Do your impairments “meet or equal” one of Social Security’s Listing of Impairments?
4. Can you do past work -  any of the jobs you performed (at a SGA level)  over the last 15 years.
5. Can you do other work – any other type of work that exists in substantial numbers in the national economy?

Note: I am simplifying and abbreviating each step — check out the link above for a more thorough review.

Here is how Social Security goes through these steps:

• To qualify for disability, you have to show that you are not working at SGA (step 1) and that your conditions are severe (step 2).
• Step 3 – meeting a listing, is the first step at which an individual can be approved. However, only a small number of cases are approved here.
• If you not approved at step 3, you have to get over both steps 4 and 5. You have to show that you cannot perform any work done 15 years prior to the onset date AND that you cannot perform any other type of work (that exists in substantial numbers in the national economy).

The Grid Rules apply at step five of the sequential evaluation process. That means that before the Grids come into play, you have to already shown that, (Step 1) you are not working an SGA job, (Step 2) your condition is severe, (Step 3), you did not meet or equal a listing, and (Step 4) you cannot perform the duties of any job done at a SGA level 15 years before the disability began.

Step 4 can be tricky. Step asks if you can still physically and/or mentally perform the duties of any job which:

1. You performed in the 15 years before your alleged onset date; and
2. You performed long enough to learn how to do the job; and
3. The job was performed at a substantial gainful activity level .

In short, if you can still perform the duties of a past job, you do not get to use the Grid Rules and you may be denied.

However, if you cannot do any past relevant work, here is how the Grid Rules may help you:

Ages 50 to 54

You can be approved for Social Security disability benefits even if you are still able to perform sedentary work so long as your past work was not skilled or semi-skilled, or if you do not have transferable skills to to other work.

If you are illiterate, or unable to communicate in English, and have no past relevant work or only unskilled work, you can be approved even if you are able to perform light work.

Ages 55 to 59

If you are between 55 and 59 years old, you can be approved for Social Security disability benefits even if you are able to perform light work.

However, if you have a 11th grade or lower education and no past relevant work, you can be disabled even if you are able to perform medium work.

Ages 60 to 64

Here is where the rules get tricky. If you are between 60 years old and 64 years old, you can be approved for Social Security disability benefits even though you can perform:

• Light work,
  • If you have a high school degree or higher level of education.
  • Or, if you have an 11th grade education, your past work was skilled semi-skilled but the skills are not transferable.
  • Or, you have a 7th to 11th grade education and your past work was unskilled.
• Medium work,
  • If you have an 11th grade education or lower and no prior work experience.
  • Or, if you have a sixth-grade education and your past work was unskilled.

Yes, things get complicated in the 60 to 64 age bracket.

Here are the GOTCHAS!

As mentioned above: you have to show that you are not able to perform your past work. If you are still capable of performing the duties of any of the past jobs you have done (at a SGA level) in the 15 years before your disability began, then the Grid Rules do not apply. These exceptions only apply if you can first prove that you cannot perform any past relevant work (PRW).

The other gotcha is that you cannot actually be working at a SGA level. These rules deal with having a “residual functional capacity” (what you are still able to do) that still allows some kind of work. In other words, you can still have an “ability to work,” but you cannot actually be working at a substantial gainful activity level (unless one of these exceptions apply).

Examples:

Here are some examples:

Over the last 15 years, you performed construction or labor jobs (medium to heavy occupations). Due to a back injury, you can no longer lift over 10 pounds and you can not stand for more than 2 hours out of an 8 hour day. This puts you in the sedentary exertional category.

This means you can still work but only at a sit-down job. In reality, you would probably need a job that has a sit/stand option, but that is not relevant for this discussion.

• If you are between 18 and 49 years old, there is a good chance you will be denied because you are still able to do sedentary work.
• However, if you are 50 years old, you will probably be approved because of the Grid Rules.

Lets shake things up. If in the last 15 years you worked for 6 months as a telemarketer (a sedentary job), you will probably be denied even at age 50 because you can still do a past job. This would be a step 4 denial.

Finally, if you are working at a SGA level at any exertional level, you are not disabled because you are able to work. A step 1 denial.

The Grid Rules are technical, but they can really be a short-cut in a Social Security disability case.

However, if you do not qualify under one of these rules, it is not the end of your case. The Grid Rules only consider a very small group of limitations (lifting/carrying, sitting, standing and walking). They do not consider bending, kneeling, using fingers and hands, working around others, or any other limitations. If you do not meet a grid rule (and most of my clients do not), all of your other limitations still need to be considered and may let you win your case.

A version of this article was first published on Bob Kraft’s site.

In 2012, earnings of $1,010 per month (before taxes) suggests the work is SGA. However there are exceptions to this. One of these is for sheltered work as defined in 20 CRF404.1574(a)(3).

If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid. The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or governmental aid does not establish that you are not earning all you are being paid. Since persons in military service being treated for severe impairments usually continue to receive full pay, we evaluate work activity in a therapy program or while on limited duty by comparing it with similar work in the civilian work force or on the basis of reasonable worth of the work, rather than on the actual amount of the earnings.

The idea behind sheltered work is that an individual may not be earning all of what they are being paid. The value of the individual’s work may be half (or a different percentage) of the amount actually paid. The amount paid over the value of the work is a subsidy. Social Security only counts the value of the work and not the subsidy in determining if the work is SGA.

For may injured soldiers, before discharge from their branch of service, they may be placed into a Warrior Transition Unit (WTU) or similar program. While the soldier’s salary stays the same, the duties are greatly reduced.

Do the earnings while in a WTU count as SGA?

According to Social Security Ruling SSR 84-24 , they probably will not count as SGA:

A person in the military service who is being treated for a severe impairment usually continues to receive full pay. Therefore, for SGA purposes, it is not appropriate to evaluate his or her work activity based on the amount of pay received. Instead, it is necessary to use nonmonetary SGA criteria in assessing the work activity of a service person receiving treatment at a military hospital and working in a designated therapy program or on limited duty. That is, we compare the activity with similar work in the civilian work force and determine its reasonable worth.

Severely impaired service persons may, for example, be placed on limited duty status and put to work in a hospital, office, mailroom, laboratory, or the like. The controlling factor in these cases is an objective evaluation of the work activity itself, and not the service person’s duty status, or whether or not a formal therapy program is involved. The fact that a therapy program or limited duty status is involved necessarily suggests that special conditions may exist.

This requires that we consider the real value of the work effort within the military setting and then equate its value to similar work in a nonmilitary setting.

In short, SSA has to consider the real value of the work performed while in a light duty situation. This does not automatically mean that the work performed is not SGA. However, it many cases, especially when a soldier’s main duty is showing up on post and performing very minimal duties, it is quite likely that the work performed as part of a WTU will not be considered SGA, even though the earnings are over the SGA threshold. However, it is important to document the following:

1. When a soldier enters a WTU program,
2. The duties performed in the WTU, and
3. The date of separation from the military.

I was recently asked the following question:

I need my job to survive. I can’t quit. I have some vacation days and sick time, but it is not enough to go without pay until they tell me I qualified.

How do I still work and file for SS Disability without loosing any income?

I have previously discussed working while applying for disability benefits. However, this question presents some new issues. Generally, I consider transferring from work to Social Security disability with no loss of income as an unrealistic goal. Here is why:

• The processing time on an initial claim is about 4-6 months (in Colorado).
• The test of disability under Social Security is an inability to perform work (at a substantial gainful activity level). So, working at SGA, after considering the exceptions) is a problem. Note: if an individual works below SGA level, it would not be a bar to receiving disability benefits. However, any work is still be an issue.
• Social Security requires that a disability be expected to last 12 months or longer. This is the “durational requirement.” While Social Security does not require that a person is out of work  (or working below the SGA level) for 12 months, Social Security can deny cases if it feels that while a person is currently disabled, but is unlikely to remain disabled for 12 months.
• There is also the 5 month waiting period (on SSDI claims), during which SSA withholds the first 5 months of benefits. If the alleged onset date is the last date an individual worked, Social Security would still keep the first 5 months of benefits. So, even if an individual is approved within 30 days of applying, there may still be a waiting period in which no benefits are paid. Note: this only applies in SSDI case (there is no waiting period in SSI cases). However, SSI cases do not pay benefits before the filing date.

If you have read all that and digested the information in the links, you have a pretty good idea of what you are up against. Theoretically, if an individual’s impairments limited him/her to work below the SGA threshold, they could continue to work and apply for benefits.

Conceivably, it is possible to document a declining ability to work and build up the case before the individual stops working to try to minimize the time without income.

However, you also have to be aware of the unintended consequences. Lawyers (and non-lawyer representatives) typically work on a percentage of back benefits. Since you are asking a lawyer to keep your back benefits to an absolute minimum, because you want a smooth transition from work income to disability benefits, a standard fee agreement may not work. If an individual asked my office to do something like this, I would probably require a fee petition based fee agreement along with a sizable deposit toward fees. This is because if successful, there wont be back benefits to take a percentage out of. AND, trying to prove inability to work, while an individual continues to work (!), is particularly difficult.

So, it is difficult, potentially do-able (or at least try-able), but costly.

UPDATE 10/13/11: If you have a condition described in the Compassionate Allowance list, it may be possible to get a very quick decision. So it would be worthwhile to review that list. The most up to date list is available here.

September 10, 2011 saw the second SSR issued for 2011 (effective September 12, 2011). You can also view and download the entire ruling as a PDF here.

SSR 11-2p deals with Documenting and Evaluating Disability in Young Adults. Much of the ruling is a summary of how Social Security should evaluate cases for claimants with ages between 18 and 25. However, there are several interesting items:

First, the ruling makes it clear that evidence generated during childhood (before the 18th birthday) can be relevant in an adult claim. The ruling describes how evidence such as IEPs, and performance in on-the-job training programs, and community based instruction can be helpful in evaluating disability:

A. Evidence Regarding Functioning From Educational Programs

As we discussed in section I.C above, we may have evidence about a young adult’s functioning from school programs, including IEPs. This evidence may indicate how well a young adult can use his or her physical or mental abilities to perform work activities. The following examples of school-reported difficulties might indicate difficulty with work activities:

• Difficulty in understanding, remembering, and carrying out simple instructions and work procedures during a school-sponsored work experience;
• Difficulty communicating spontaneously and appropriately in the classroom;
• Difficulty with maintaining attention for extended periods in a classroom;
• Difficulty relating to authority figures and responding appropriately to correction or criticism during school or a work-study experience;
• Difficulty using motor skills to move from one classroom to another.

B. Community Experiences, Including Job Placements

1. A young adult may receive services in a community setting(s) through a school or a community agency, such as a mental health center or vocational rehabilitation agency. These services may include:

• Community-based instruction (CBI), or instruction in a natural, age appropriate setting (for example, trips to the grocery store to develop math, sequencing, travel, and social skills).
• On-the-job training (OJT), or placement in various work sites in the community for vocational training and experience, frequently in an ‘’enclave’’ (small group) of students with a job coach (for example, placement in an enclave in a motel to learn housekeeping tasks such as bed-making and vacuuming).
• Work experience, or supervised part-time or full-time employment to assist a young adult in acquiring job skills and good work attitudes and habits.

2. A young adult may participate in several—or even many—OJT or work experience placements that are unpaid, paid at SGA levels, or paid at less than SGA levels. Some young adults have multiple placements as part of a transition plan that expose them to a variety of work settings. Other young adults have multiple placements because of unsatisfactory performance.

Regardless of whether the work was SGA, information about how well a young adult performed in these placements can help us assess how the young adult functions. For example, a young adult who was unable to sustain OJT placements may have limitations in the ability to understand and remember instructions or to persist at work-related tasks. In contrast, a young adult who performed OJT placements successfully may have a good ability to respond appropriately to supervision. In addition, information about the degree to which a young adult needs special supports in order to work (such as in supported or transitional employment programs) may also help us assess the young adult’s functioning. Emphasis added.

C. Psychosocial Supports and Highly Structured or Supportive Settings

As for all adults, psychosocial supports and highly structured or supportive settings may reduce the demands on a young adult and help him or her function. However, the young adult’s ability to function in settings that are less demanding, more structured, or more supportive than those in which people typically work does not necessarily show how the young adult will be able to function in a work setting. We will consider the kind and extent of support or assistance and the characteristics of any structured setting in which the young adult spends his or her time when we evaluate the effects of his or her impairment(s) on functioning.

D. Extra Help and Accommodations

Working requires a person to be able to do the tasks of a job independently, appropriately, effectively, and on a sustained basis. In this regard, the analysis for adult disability determination purposes is similar to our ‘’extra help’’ rules for children. If an adult with an impairment(s) needs or would need greater supervision or assistance, or some other type of accommodation, because of the impairment(s) than an employee who does not have an impairment, the adult has a work-related limitation.

We consider how independently a young adult is able to function, including whether the young adult needs help from other people or special equipment, devices, or medications to perform day-to-day activities. If a young adult can function only if he or she receives more help than would generally be provided to people without medical impairments, we consider how well the young adult would function without the extra help. The more extra help or support of any kind that a young adult receives because of his or her impairment(s), the less independent he or she is in functioning, and the more severe we will find the limitation to be.

1. Accommodations

a. Accommodations are practices and procedures that allow a person to complete the same activity or task as other people. Accommodations can include a change in setting, timing, or scheduling, or an assistive or adaptive device.

b. Some young adults with impairments need accommodations in their educational program in order to participate in the general curriculum or in a transitional program. The fact that a young adult receives or has received accommodations as a part of his or her IEP or Section 504 plan, may be an indication that he or she has a work related limitation. For example, evidence showing that a student requires an audiotape recording of oral directions for replay at school because he cannot remember more than a one-step instruction might indicate that the student will have the same inability to remember more than a one-step instruction without special assistance in a work setting.

c. Some accommodations may indicate an impairment(s) that meets or medically equals a listing. For example, the need for an augmentative or alternative communication or AAC device (for example, an electronic picture board or an electrolarynx) might indicate a speech impairment that meets listing 2.09 or an impairment that meets one of the neurological listings in section 11.00 of the listings.

d. When we determine whether a person can perform his or her past relevant work, we do not consider potential accommodations unless his or her employer actually made the accommodation. This means that we cannot find that a young adult can do past relevant work with accommodations unless the young adult actually performed that work with those same accommodations and is still able to do so now.

e. When we determine whether a person can do other work that exists in significant numbers in the national economy, we do not consider whether he or she could do so with accommodations, even if an employer would be required to provide reasonable accommodations under the Americans with Disabilities Act of 1990.

2. Effects of Treatment, Including Medications

Treatment, including medications, can have a positive effect on a person’s ability to function in a work setting. For example, a young adult who takes an antidepressant medication may be able to interact appropriately with supervisors and co-workers. Treatment, however, may not resolve all of the functional limitations that result from an impairment(s). Medications or other treatment may cause side effects that affect the mental or physical ability to work. For example, an anti-epileptic medication may cause drowsiness that affects the ability to concentrate; daily chest percussion therapy for cystic fibrosis may cause fatigue because of the physical effort involved in the therapy. The frequency of a young adult’s treatment may preclude him or her from maintaining a full-time work schedule; that is, 8 hours a day, 5 days a week on a sustained basis.

E. Work-Related Stress

1. Working involves many factors and demands that can be stressful. For example, some people may experience stress related to the demands of getting to work regularly, having work performance supervised, or remaining in the workplace for a full day, 5 days a week on a sustained basis. Moreover, one person’s reaction to stress associated with the demands of work may be different from another’s, even among people with the same impairments.

2. Sources familiar with the young adult may provide insight about the effect of stress on his or her physical or mental functioning and what, if any, psychosocial supports or structure he or she would need when experiencing work-related stress. We consider impairment-related limitations created by a person’s response to the demands of work when we assess RFC.

The ruling also discusses how Social Security should determine if the work performed by a younger individual is Substantial Gainful Activity (SGA). The ruling provides the general rule that reporting earnings are presumed to have been fully “earned” by the younger individual without a subsidy. However, this presumption can be rebutted.

IV. Determining Disability

A. Determining Whether a Young Adult’s Work Activity is SGA

When we determine a young adult’s earnings for SGA purposes, we count only those earnings that are attributable to his or her own productivity. We assume that a young adult’s reported earnings are attributable to his or her own productivity unless there is evidence indicating that those earnings are greater than would be attributable to his or her productivity.

The ruling goes on to discuss instances where earnings my have been subsidized — which might mean that the work was not a Substantial Gainful Activity.

1. Work Activity

Many young adults with disabilities have worked. The work experience may have been (or may be, if the person is still working) subsidized, in a sheltered setting, or performed under special conditions. As for any adult, we exclude subsidized earnings. In addition:

• Some young adults whose impairments arose during military service continue on active duty and receive full pay while they are in treatment for their impairments. They may also receive payments while working in a designated therapy program or on limited duty. Active duty status or receipt of pay (for example, sick pay) by a member of the military does not indicate by itself that the service person has demonstrated the ability to do SGA. We will consider the actual work activity, not the amount of pay the service person receives or the duty status of the service person, when we determine whether the work is SGA.
• Young adults may have impairment-related work expenses; that is, expenses for an item or service that directly enables a person to work and that the person necessarily incurs because of an impairment(s). We deduct impairment-related work expenses from a person’s wages or self-employment income before we determine whether the wages or self-employment income constitute SGA.

2. Volunteer Service Young adults with disabilities may participate in government-sponsored programs for volunteer activity, such as AmeriCorps VISTA. We do not count as earnings payments a person receives from some of these programs.

3. Unsuccessful Work Attempts Some people have brief periods of work with earnings at the SGA level. We will consider the possibility that a brief period of work was an unsuccessful work attempt when we are determining whether the work was SGA. If a period of work is an unsuccessful work attempt, we will not consider that work to be SGA when we determine if the young adult is under a disability. However, as we noted in section III.A, covered wages or self-employment income from an unsuccessful work attempt may provide work credits that establish disability insured status under title II.

The ruling also deals with younger individuals at Step 5 of the sequential evaluation process: ability to adjust to “other work.” Generally, younger individuals have the most difficulty proving disability:

2. When a young adult has only exertional (strength) limitations and has an RFC and vocational factors that match the criteria of a rule in the Medical-Vocational Guidelines in appendix 2 of subpart P of the Regulations No. 4 (grid rules), the grid rules always direct a decision of ‘’not disabled’’ for young adults.

Fortunately, it is a rare case that only results in exertional limitations. And the rule acknowledges that non-exertional limitations (from limitations on the use of the hands and arms, to bending and stopped, and even an inability to work a 40 hour week) can erode the job base and allow an individual to be found disabled.

For cases with non-exertional limitations due to mental impairments (including psychological, developmental, and cognitive), the ruling is instructive in that it indicates the criteria Social Security should most focus on:

c. If a young adult has a substantial loss of one or more of the basic mental demands of competitive, remunerative, unskilled work, the occupational base will be significantly eroded, despite vocational factors that we would ordinarily consider favorable (for example, young age, college education, and skilled work experience). The basic mental demands of competitive, remunerative, unskilled work include the abilities to:

• Understand, remember, and carry out instructions;
• Make simple work-related judgments typically required for unskilled work;
• Respond appropriately to supervision, coworkers, and work situations; and
• Deal with changes in a routine work setting.

Of course, this is not a complete list of possible limitations. However, it is interesting to see what Social Security recommends that its adjudicators focus on.

The ruling also reminds Social Security that since younger individuals are more likely to be coming fresh from school (high school or college), they are more likely to be able to step into skilled jobs.

d. Adjudicators must remember that young adults are more likely to have recent educational experience that provides for direct entry into skilled work; some will also have vocational experiences (see section C. above) that provide them with skills they can use in skilled or semiskilled work.

One adjustment consideration with skilled work is how much has the the industry changed since the skills were acquired. The more the tools and techniques have changed, the greater the adjustment required. For example: the skills acquired in a business assistant program 20 years ago are dated and would likely result is some adjustment to work in today’s office. However, a recent graduate would have minimal adjustment. The greater the adjustment, the less likely the individual is actually able to perform the duties required.

The ruling reminds Social Security not to rule out skilled work as the basis of a possible denial (even without no prior job experience) due to recent training, internships and/or job placement.

Also valuable is the discussion of evaluating inconsistencies in the evidence. One example is the possibility of a “good day” during a consultative examination:

5. An apparent inconsistency is not always a true inconsistency. For example, the record for a young adult with attention-deficit/hyperactivity disorder may include good, longitudinal evidence of hyperactivity at home, in the classroom, and on work experience placements in the classroom, but show a lack of hyperactivity during a consultative examination (CE). The observations during the CE may represent a ‘’good’’ day, rather than the overall level of functioning or the effect of an unusual setting. In this case, there would be only a normal variation in functioning at the time of the CE.

Thanks to David Traver for bringing the ruling to my attention.

New congressional estimates say the trust fund that supports Social Security disability will run out of money by 2017, leaving the program unable to pay full benefits, unless Congress acts.

…

The trustees who oversee Social Security are urging Congress to shore up the disability system by reallocating money from the retirement program, just as lawmakers did in 1994. If Congress does not act, the disability program will collect only enough payroll taxes to pay about 85 percent of benefits after the trust fund is exhausted in 2017.

So, Social Security may not have enough coming in to pay out full disability benefits as soon as 2017. Whether this will prompt the described reallocation or if this means cuts to the nation’s 13.6 million on disability remains up in the air.

Via The Raw Story

Unfortunately, typically not. While a 504 plan or an IEP is good evidence and often contains useful information about the child’s disability, it is often not enough by itself.

There is no single formula for winning a disability case. There is a wide range of possible evidence that may be useful:

• Doctors records.
• Hospital records.
• Mental health provider records.
• Police reports.
• School disciplinary reports.
• Attendance records.
• School psychologist records.
• Any evaluations with
• Physical therapy / occupational therapy records.
• Teacher questionnaires.
• Special Education teacher reports.
• IQ test results.
• WJ-III test results.

This is just scratching the surface. If you can think of other evidence, do not avoid it just because it is not listed here. Tell me in the comments about the kind of evidence you found useful.

My friend, Maine disability lawyer, Gordon Gates, has put together a free e-book, 10 Steps To Prepare For Your Social Security Disability Hearing.

In it, you’ll learn:

• How Social Security reviews cases.
• What you can do while waiting for your hearing.
• How to expedite cases.
• The information you will need to have at your hearing.

We’ve previously talked about the Social Security Family Maximum, which limits the total amount of auxiliary benefits that paid out on any case. We have also discussed how a new child can reduce the auxiliary benefits for other children.

I was recently asked by a divorced dad if the auxiliary benefits paid out to others based on his disability (especially if the family maximum is reached) reduce his benefits?

No. Here is how Social Security explains it:

I’ve heard that there is a maximum family benefit under Social Security. Does this mean that once the maximum is reached, some family members won’t get benefits?

No. Each family member entitled to a monthly benefit will receive one. The total benefits received by the family, however, cannot exceed the family maximum amount. That amount is divided among all entitled dependents. The more dependents who receive benefits on the worker’s Social Security record, the lower the benefit amount will be for each dependent. However, the family maximum does not affect the wage earner’s benefit.

photo credit: xsomnis

Preface: It should be noted that medical evidence (such as treatment records and opinions) are often the best evidence of how social anxiety disorder is disabling. However, by its very nature, social anxiety disorder can make treatment difficult if not impossible. This post discusses alternative methods of documenting a social anxiety disability case.

Every case is different so it is very difficult to make general statements about how to prove a case. At least, other than, “make sure SSA gets your medical records.” Personally, I recommend working with a lawyer to help figure out the best way to develop your case. However, here are some general tips for developing a Social Anxiety Disorder disability case.

When an individual seriously isolates themselves (avoiding doctors, friends, family, etc), it may help to get letters documenting the isolation. For example, have friends and family write about the individual avoiding family get-togethers, church, dinners, children’s sporting events, weddings, funerals, or other events.

You can also document avoiding other public situations such as:

• Shopping only during night / slow periods,
• Leaving stores if they are too crowded or too noisy.
• Leaving groceries without checking out.
• Sitting in the back at events.
• Leaving events early.
• Handling children’s school conferences by telephone instead of attending in person.

These are just some examples. There is no limit to the possible ways of documenting social anxiety disorder.

photo credit: ☮Katrina☮

Earlier we wrote to tell you that we would review your Supplemental Security Income (SSI) disability case to decide if you were still disabled. We are writing now to tell you that because you are over age 18, we will use the same disability rules we use for adults who file new claims to decide your case. However, we will not apply the rule that says we must deny your claim if you are working.

Doctors and other trained staff will decide if you are disabled under the disability rules for adults. We may decide that you are not disabled under the disability rules for adults and your SSI payments could stop. The disability rules for adults are different than the disability rules for children we used when we last looked at your case. So we may find you are not disabled now even though we found you disabled before. When we decide we will let you know our decision. Our letter will explain your right to appeal the decision. If you appeal the decision you can also choose to have us continue to make payments until we decide the appeal.

Social Security has to make a re-determination of disability at age 18 in order for benefits to continue. In short, once a child turns 18, they have to once again prove they are disabled — this time under the adult standard.

Social Security provides more information here including how long after a child turns 18 does Social Security review the child’s case:

For disability purposes in the SSI program, a child becomes an adult at age 18, and we use different medical and non-medical rules when deciding if an adult can get SSI disability payments. For example, we do not count the income and resources of family members when deciding whether an adult meets the financial limits for SSI. We count only the adult’s income and resources. We also use the disability rules for adults when deciding whether an adult is disabled.

• If your child is already receiving SSI payments, we must review the child’s medical condition when he or she turns age 18. We usually do this review during the one-year period that begins on your child’s 18th birthday. We will use the adult disability rules to decide whether your 18-year-old is disabled.
• If your child was not eligible for SSI before his or her 18th birthday because you and your spouse had too much income or resources, he or she may become eligible for SSI at age 18.

What are the adult rules for disability?

For adult cases, the principle issue is whether the individual is able to work. A common mistake parents make is to respond, “well of course, my child can’t work, s/he never has worked.” Or, “S/he is still in school, so of course s/he cannot work.”

It is important to remember that Social Security performs a theoretical analysis.

• Social Security does not ask whether an individual is working?
• Or, whether working is the best option for an individual at a particular moment? For example Is is better for an individual to work versus getting a degree)

Social Security only asks is the individual able to work? Note: the work also has to be at a substantial gainful activity level — which roughly translates to full time work.

While having to prove the case over again seems like a lot (and it can be), that a child did previously qualify for disability benefits is a good indicator that the young adult may also qualify under the adult standard.

Note: if you have a child who turned 18 before Social Security was deciding the case, check out what happens to a child’s disability case if the child turns 18 before the case is decided.

Here are the pros and cons of using video in a disability case:

• In general, videos can help explain the medical records. However, they do not replace medical records in providing a diagnosis or a description of limitations.
• Videos can show the extent and severity of a problem. However, the risk is that it puts the viewer into the position of having to ask, “is what I’m seeing an honest depiction? Is this staged? Is this exaggerated?” A lot has to do with who is making the tape and for what purpose.
• Also, videos by their very nature risk taking a person outside of an event. For the person recording, you may be re-living the event every time you watch the video. However, it may not have same impact for someone who was not there. Videos risk loosing subtext. This is like reading a book (which provides the inner dialog and emotions) versus seeing the movie (where if it isn’t conveyed on the screen, it didn’t happen).

For example: consider a parent talking about watching her child have a severe asthma attack: feeling his body shake, seeing the pain and pleading in his eyes, feeling his hands grasping theirs, slowly, slowly improving, then curling up next to her looking for reassurance that it wont happen again. A video of a the same asthma attack might only show a child lying still holding his mother’s hand with the breathing improving over 10 minutes and then the child rolls over. The impact is gone.

Even, if the parent tries to describe the what the event was like AFTER showing the video, it may be too late. The viewer be thinking, “No. I saw it. The attack wasn’t that bad.” While video lets a person witness an event, the viewer may lose the vicarious experience.

Let me give you an example of where a video might be useful. In the case of a child with severe behavior issues, having a teacher record a child during an outburst may be quite useful since the teacher is more impartial than a parent and the outburst occurring in a school setting is less likely to be staged. Combined with a statement that the video shows a typical outburst and the frequency and duration of such outbursts, a video like this may be useful.

What is comes down to is video can be useful, however there are risks. Ultimately, it has to be evaluated on a case by case basis.

photo credit: JVCAmerica

Social Security frequently has single decision makers (SDMs) complete forms describing what an individual can and cannot do in the workplace. These are very important case since the ultimate issue in a Social Security disability is whether an individual can still perform some type of work.

§404.906 describes the SDM process:

(2) In the single decisionmaker model, the decisionmaker will make the disability determination and may also determine whether the other conditions for entitlement to benefits based on disability are met. The decisionmaker will make the disability determination after any appropriate consultation with a medical or psychological consultant. The medical or psychological consultant will not be required to sign the disability determination forms we use to have the State agency certify the determination of disability to us (see §404.1615). However, before an initial determination is made that a claimant is not disabled in any case where there is evidence which indicates the existence of a mental impairment, the decisionmaker will make every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment pursuant to our existing procedures (see §404.1617). In some instances the decisionmaker may be the disability claim manager described in paragraph (b)(1) of this section. When the decisionmaker is a State agency employee, a team of individuals that includes a Federal employee will determine whether the other conditions for entitlement to benefits are met.

The problem with a SDM deciding an individual’s limitations is that SDMs are not doctors, nor nurses, nor any type of medical professional. The SDM is often the Social Security case manager working in the Disability Determination Services (DDS) office.

The SDM often works with a medical expert to evaluate the extent of a claimant’s impairments and the resulting limitations. However, it is the SDM, not the medical professional, who often completes the limitations forms and decides whether an individual is disabled.

In cases with physical disabilities, the medical consultant does not need to sign the disability determination forms (typically a Physical RFC Form SSA-4374-BK). In cases with psychological impairments, the regulations a bit stricter requiring the SDM, “every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.” So, even in mental impairment cases, it is not an iron clad requirement that the medical consultant sign off on the claimant’s limitations.

I don’t want to go too far off on a tangent. The main point is that during the initial evaluation of disability claims under the SDM system, technicians and not doctors are deciding individual’s abilities and limitations. If you are still saying, “so what,” keep in mind that if the situation were reversed, a claimant’s representative providing the same form filled out by someone with no medical credentials in support of the claimant’s disability, would be laughable. It would neither be an “acceptable medical source,” nor an “other acceptable source.” See SSR 06-03p.

Ok. This simply means the situation is not equal. Social Security has to trust someone to decide an individual’s limitation and the issue of disability at the initial determination level. And, instead of a medical consultant, it can be a Social Security case manager with no medical credentials.

Question: Are these SMD determinations of abilities and limitations still valid as opinions at the hearing level?

Answer: NO!

Maine and New Hampshire Social Security disability attorney Gordon Gates has great posts (post 1, post 2) about the how much weight a SDMs Residual Functional Capacity can be given at the hearing level:

A single decisionmaker RFC must be given no evidentiary weight by the judge at the hearing level.

At the hearing level, a single decisionmaker RFC should be placed with the jurisdictional documents in the “A” exhibits in the disability claim file, rather than with the medical evidence in the “F” exhibits.

For “prototype” states without Reconsideration, that single decisionmaker RFC is probably the only physical RFC in the file. So to have it off limits is quite beneficial for the claimant.

The basis for this are two memoranda from the Chief Administrative Law Judge’s office at Social Security. On May 19, 2010, then Chief Administrative Law Judge Frank Cristuado issued a Memorandum stating the following:

SDMs often complete the Physical RFC Form, SSA-4374-BK, which is commonly completed by State agency medical consultants. Some ALJs and AAs treat the SDM RFC assessments as non-medical opinions and weigh them accordingly. However, this approach is inconsistent with agency policy clarified by POMS instruction DI 24510.050C, which states SDM form are not opinion evidence at the appeal levels. Thus, agency policy requires ALJs and AAs to evaluate SDM RFC assessments as adjudicatory documents only, and not accord them any evidentiary weight when deciding cases at the hearing level. Emphasis added.

Not only was Chief Judge Christuado stating that SDM residual functional capacity statements were not medical opinions, he indicated that they were not opinion evidence at all. Therefore, NO EVIDENTIARY WEIGHT was to be given to SDM RFC forms!

Then on September 14, 2010, Acting Chief Administrative Law Judge John Costello issued a revised memo which strengthening this position:

Agency policy is that findings made by SDMs are not opinion evidence that Administrative Law Judge, (ALJ) or Attorney Adjudicator, (AA) should consider and address in their decisions. See, for example POMS DI 24510.050C, which states that SDM-completed forms are not opinion evidence at the appeal levels. SDM finding, are not “medical opinion” evidence since they do not come from medical source. However, agency policy is, that they are also not the opinions of non-medical sources, as described in SSR 06-3p.

Therefore, ALJs and Aas must not consider SDM RFC assessment forms and other findings as opinion evidence and must not evaluate them in their decisions.

…

When a case that contains a copy of an SDM’s SSA-4734-BK is appealed to the hearing level, the form will be located in the “F” section (Medical Records). At case workup SDMs form should be moved to the “A” section (Payment Documents/Decision,); any forms signed by MCs or PCs should be left in the “F” section.

If you worked your way to the end of this post, you may be wondering what does this mean for you?

If you have a RFC form in the file signed by a SDM (and there will be “SDM” after the signer’s name), the SDM’s findings as to the residual functional capacity (RFC) — what the individual can and cannot do — cannot be used as evidence at the hearing level. One way to bring this to the judge’s attention is to request that the SDM RFC form be moved to A section of the file, and provide a copy of the September 14, 2010 memo along with the request.

Many thanks to New York disability attorney Jeff Delott and Maine and New Hampshire Social Security disability attorney Gordon Gates.

If you cannot clearly prove that a child meets or medically equals a listing, it often a good idea to prepare to prove the case using functional equivalence. Do not worry about the terminology. The process is fairly simple: to decide functional equivalence, Social Security looks at children’s functions in 6 areas (or “domains”):

1. Acquiring and using information.
2. Attending and completing tasks.
3. Interacting and relating with others.
4. Moving about and manipulating objects.
5. Caring for yourself.
6. Health and physical well-being.

To win a child’s Social Security disability case for functional equivalence, you need to have either a) an extreme in limitation in one domain; or b) a marked limitation in two domains.

However, what constitutes a marked or an extreme limitations can be hard to determine. Here are the Social Security definitions:

We will find that you have an “extreme” limitation in a domain when your impairment(s) interferes very seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be very seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. “Extreme” limitation also means a limitation that is “more than marked.” “Extreme” limitation is the rating we give to the worst limitations. However, “extreme limitation” does not necessarily mean a total lack or loss of ability to function. It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean.

We will find that you have a “marked” limitation in a domain when your impairment(s) interferes seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. “Marked” limitation also means a limitation that is “more than moderate” but “less than extreme.”

If you have read this and you still do not know whether a limitation is “less than marked,”  ”marked,” or  ”extreme,” then you are not alone. The standard of “at least three standard deviations below the mean” may work in the “acquiring and using information” domain where Social Security looks at grades and objective test results. However, when it comes to social functioning, statistical standard deviations are not helpful.

Here are some of the questions Social Security considers when deciding the level of limitation for each domain.

• What activities is the child able to perform?
• What activities is the child not able to perform?
• Which of the child’s activities are limited or restricted compared to other children his or her age who do not have impairments?
• Where does the child have difficulty with his or her activities? At home, in childcare, at school, or in the community?
• Does the child have difficulty independently initiating, sustaining, or completing activities?
• What kind of help does the child need to do his or her activities? How much help does the child need, and how often does the child need it?

Keep in mind there is a lot of room for argument in functional limitations cases. Hearings often go back and forth on the issue of whether limitations are less than marked, marked, or extreme. Having a strong advocate becomes very important at this stage.

For more information on this topic, check out §416.926a Functional equivalence for children.

photo credit: Philippe Put