Social Security Disability

Presumption of Disability

Medical Evidence as Basis for Decision of "Disabled" -- Listing of Impairments

When is medical evidence alone enough to establish your disability?

Medical evidence alone may establish that you are disabled if:

A.     The evidence shows that you have an impairment as described in Part A of the Listing of Impairments; this is called "meeting" a listing; or

B.     The evidence shows you have an impairment or combination of impairments that is medically as severe as a listed impairment; this is called "medically equaling" a listing.

You must not be engaging in any substantial gainful activity.

How is the Listing of Impairments used to establish disability?

The Listing of Impairments (the listings) is set out in Social Security regulations. The listings are in two parts. There are listings for adults (part A) and for children (part B). For claimants over 18, Social Security uses part A and for those under 18, SSA uses part B. The listings are examples of common impairments for each of the major body systems that Social Security considers severe enough to keep an average adult from doing any gainful activity.  See appendix 1 of subpart P of part 404 of Social Security's regulations for the Listing of Impairments.

The listed impairments are of such a level of severity that Social Security considers a person whose impairment(s) meets or equals the Listing of Impairments to be unable to do any gainful activity, that is, the impairment(s) is expected to result in death, or to last for a specific duration, or the evidence must show that the listed impairment has lasted or is expected to last for at least 12 months in a row.

Is the diagnosis of an impairment in the Listing enough to establish your disability?

Generally, a diagnosis alone does not meet the guidelines of the Listing simply because it is the same diagnosis as a listed impairment. To be considered as "meeting" a listing, the impairment must have the symptoms, clinical signs, and laboratory findings specified in the Listing.

Five-Steps to Win Disability Benefits

The Five-Step Process for Determining Disability

1.       Is the claimant working?

If the individual is working and his or her work is substantial gainful activity ("SGA"), then the individual is not disabled for Social Security purposes.

2.       Is the medical condition "severe"?

Does the individual have an impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities? Basic work activities include walking, standing, sitting, lifting, seeing, hearing, speaking, using judgment, understanding, and carrying out and remembering simple instructions.  If the impairment or combination of impairments is slight and has no more than a minimal effect on the ability to do basic work activities, the individual is not disabled for Social Security or SSI purposes.

3.       Is the medical condition included in the Listing of Impairments?

The Listing of Impairments describes impairments for each body system that are considered severe enough to prevent the person from engaging in any gainful activity.  If the claimant's condition (or combination of medical conditions) is not on the list, the adjudicator looks to see if the severity of the condition is equal to a condition on the list.  If, based on the medical records, the severity of the medical condition is on the list or equals that of a listed impairment, the claimant is disabled.  If it does not, the adjudicator goes on to step 4.

4.       Can the individual do the work that was done before?

This step requires that the adjudicator first determine the claimant's residual functional capacity ("RFC") or what the claimant can still do despite any physical and mental limitations caused by a medically determined impairment(s) and related symptoms.  The residual functional capacity is then compared with the physical and mental demands of work that the claimant performed in the past 15 years. If the claimant has the residual functional capacity to perform such work, he or she is found not disabled.  If the claimant does not have the residual functional capacity to perform past work, the adjudicator goes on to step 5.

5.       Can the individual do any other type of work?

If the claimant cannot do the work performed in the past, the adjudicator checks to see whether the claimant would be able to do other work.  The adjudicator evaluates the claimant's residual functional capacity, age, education, work experience, and any skills that could be used to do other work.  If the claimant cannot do other work, he or she is determined to be disabled.  If the individual can do other work, he or she is found not disabled.

Decision Review Board

The Decision Review Board is comprised of administrative law judges and administrative appeals judges, who are appointed to the Board by the Commissioner. The Board is responsible for evaluating and reviewing some of the decisions made by administrative law judges. 

Problem:

These special appointments are the same poor ALJs that needed a union to protect them, allegedly from the Social Security Administration, but realistically from their inadequate performance.  Can anyone envision federal judges creating a union to protect them from their own incompetence?  Are there any viable solutions for monitoring ALJ performance?

New Rules - Vocational Experts

Vocational expert means a vocational professional who has the qualifications required by the Commissioner and who provides expertise to disability adjudicators at the initial, Federal reviewing official, and administrative law judge levels of the administrative review process.

National registry of vocational experts. Vocational experts having the qualifications established by the Commissioner may be included in a registry that we will maintain. The registry will be maintained for and made available to State agencies.

Exactly what are those qualifications?  But importantly, vocational experts should be require to disclose their financial interests with the Social Security Administration.  An expert that has 100% of their revenue or income from appearing at Social Security hearings may have a different opinion than the expert who has only one client - the Social Security Administration.      

Social Security Judges

Administrative Law Judges ("ALJs") conduct impartial hearings and make decisions on appeals filed by claimants, their representatives, providers‑of‑service institutions and others under the Social Security Act. 

SSA Judges and Hearings

Administrative Law Judges ("ALJ") are prohibited from making medical judgments because they are not doctors or medical experts.  ALJs must give treating physicians controlling weight but many do not.  Instead, ALJs use personal bias or prejudices to write unfavorable decisions.  ALJs improperly use the concept of credibility as the single most cited reason to deny disability cases.  The Judge can determine that not only is the claimant not credible, but neither are the claimant’s treating doctors.

We have two problems.  First, doctors write abbreviated notes that focus predominately on positive results.  Doctors do not elaborate about how poorly a patient feels.  If the doctor is good, the patient should get results.  Second, evidence law does not apply to disability hearings.  In a regular hearing, the evidence is subject to strict rules.  You get to examine and cross-examine the doctor and their notes.  There are dozens of legitimate reasons why a patient has a great week followed by a disabling month.  Evidence law protects the claimant from arbitrary systems. 

Poor judges take advantage of the fact the claimant is not bringing his doctor into the hearing to explain the claimant's signs, symptoms and laboratory findings, or the claimant's functional limitations.  Administrative Law Judges distort abbreviated notes and statements to their advantage.  It's unfortunate that the ALJs do not police their ranks.  Bad ALJs tarnish the good ALJs and the entire Office of Adjudication and Review ("ODAR"), formerly the Office of Hearings and Appeals ("OHA").  Bad ALJs have a narrow focus: this hearing is about whether or not I like you

Potential Solutions:

(1) Create a Social Security Court with pre-hearing conferences, disclosures, discovery, depositions, witnesses and application of the rules of evidence.  This is the only way to police runaway ALJs, unclog the federal courts with disability cases, control agency costs, and restore public confidence is the social security disability program.

(2) Legislation that requires Social Security to make two decisions instead of one:

• the disability decision when a claimant has an impairment that can be expected to result in death or to last for a continuous period of not less than 12 months; this decision has two components - the severity and duration - and the claimant must satisfy both components for an award of benefits.
• the Medicare decision based strictly on severity and not duration.  Many claimants fight for the Medicare health care benefits and not the monthly benefits award.  Receiving medical treatment quickly is a significant component to the reduction of impairment severity. 

Good ALJs understand that indeed they have the power to make a claimant miserable for a year or two, but eventually most of those claimants go on to win - the eventual total cost is all of the claimant’s past-due benefits, SSA's litigation costs, the burden on the federal judiciary, and the destruction of public confidence in the system.  Many clients arrive at my office from the start of the initial application process stating that the system is complex, unpredictable, unfair and bias.