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Roger N. Meyer "...of a different mind "
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Practicing Social Security Law

by Alan Stuart Graf and Kimberly Tucker-social security attorneys

 

source: http://www.hippielawyer.com/ and http://www.hippielawyer.com/hippielawyercom__SocialSec.htm#_ftn1 accessed 8-23-2005
This lengthy article, only slightly reformatted, appears by permission of the authors.

 

 

The Social Security Disability Claim Appeal Process

  

Initial Application: Your initial social security disability and/or supplemental security income application can be filed by telephone by dialing 1-800-772-1213. If your claim is denied, you must appeal the denial within 60 days of the denial date. At this stage of the application process, the Social Security Administration contracts the Oregon Department of Disability Services (DDS) to determine whether you are disabled. DDS is located in Salem, Oregon and will contact you by telephone and/or letter during this process. You may be asked to see a doctor, psychologist, and/or a vocational evaluator. If so, please let our office know who you are scheduled to see. It is very important that you keep any evaluation appointments scheduled for you by Social Security. Please be completely honest about your condition and do your best during any testing. Do not exaggerate your condition in any way, as the experts are trained to recognize any exaggeration of symptoms and may use it against you. It normally takes two to four months to receive a decision on your initial claim. If you are denied, we need to file an appeal within 60 days. We normally do not assist clients with the initial application process.

Request For Reconsideration: This stage of the Social Security appeals process is also handled by DDS. At the reconsideration stage, you are asking DDS to admit that they made a mistake when they denied your initial application. As you can guess, DDS usually believes it was right the first time. Do not be surprised if DDS denies your claim a second time. DDS normally makes this decision in approximately four months. If you do not hear anything after four months please call us. DDS may again ask you to see a doctor, a psychologist, and/or a vocational evaluator. If DDS denies your case again, we must appeal their decision within 60 days of the denial date by requesting a hearing in front of an Administrative Law Judge. This is the stage where we normally become involved in a case.

Request For Hearing: Once a Request for Hearing is filed, you will receive a letter stating your request for a hearing has been received by the Office of Hearings and Appeals. If you do not receive such a letter in the first month, please call us so that we can find out why your request has not been processed.

After you have received your letter stating that the Office of Hearings and Appeals (OHA) has received your request for hearing, you will not hear from OHA for about nine to twelve months. The hearing office takes a nine to twelve month period to process the thousands of cases that are submitted to their office. You will normally not hear much from our office during the time you are waiting for your hearing.

During this time period it is important for you to continue to see your treating doctors or medical providers as often as possible for treatment for your impairment. When seeing your providers, make sure you mention to them how your impairments affect your ability to do tasks around the house, interact with others and generally affect your life and lifestyle. Normally, your complaints will be written down in the medical record. This written documentation will help support your case at the upcoming hearing.

After a wait of approximately nine to ten months, you will receive another questionnaire from the Office of Hearings and Appeals (OHA) entitled "Claimant's Questionnaire." This questionnaire is an indication that your file is being prepared for a hearing by OHA. When you receive this questionnaire, please fill it out completely and send it to our office as soon as possible. We will forward it to OHA and begin to update your Social Security file with current medical records.

We appreciate any assistance that you can give us collecting your medical records because most of the time doctors will not charge the patient for their own records. Doctors almost always charge attorneys for records. Your assistance in securing records will help keep costs you are responsible for paying down. Please do not ask your doctor to write a letter on your behalf for your Social Security case. It can hurt your case rather than help it. Doctors are not aware of Social Security law and without our guidance may write something not in conformity with the law.

Once we receive notice that your hearing is coming up, we will set up an appointment with you to meet with your attorney. At this conference your attorney will review your case, prepare you for the hearing, and determine what additional evidence we may need to collect. This appointment usually takes about an hour.

Next you should receive a formal Notice of Hearing from the Office of Hearings and Appeals stating the date and location of the hearing. You should double check this Notice to verify the information you have been given about your hearing is accurate.

On the date of the hearing, please be at the Office of Hearings and Appeals one half hour before the hearing for additional review of your case with your attorney.

At your hearing, the judge may decide your case at the hearing, although this is rare. If he/she does not approve your appeal at the hearing you may have to wait from two to six months for a written decision. If you have not received a decision by the third month after the hearing, please call us and we will write the judge a letter asking for the status of your case, as a gentle reminder. If the judge denies your case we will have 60 days to appeal the judge's decision.

Request to Review Administrative Law Judge's Decision

If we appeal the denial of your case by the Administrative Law Judge, your file and the decision are sent to the Appeals Council in Falls Church, Virginia for review. The Appeals Council may affirm the Judge's decision denying benefits, reverse the decision and grant you benefits, or send your case back for another hearing. Normally the AC agrees with the judge's decision. This appeals process can take anywhere from two months to two years for completion, although usually we receive a decision from the AC within six months. If the Administrative Law Judge's decision is affirmed we will consider filing a federal lawsuit in the U.S. District Court against the Social Security Administration.

If the AC affirms the judge's denial we generally recommend that besides filing a lawsuit against Social Security, you file a new application for disability and use the day after the hearing date as your on-set of disability date for this second claim.

If you re-apply, we do not automatically represent you in your new case. You will need to contact us if you would like us to represent you on your second claim. Please do not assume we are your representative for this second claim. If you hire an attorney for the second claim the Administration must receive official notice of your representation.

US District Court

It will normally takes approximately nine to twelve months to receive a decision from the federal court from the day we file a lawsuit on your behalf, although it may take longer. A lawsuit can produce three different results: 1) the best result is that the federal judge orders the Social Security Administration to pay you benefits; 2) the next best result is that the Social Security Administration (or the court) agrees to send your case back for another hearing, usually with the same Administrative Law Judge; and 3) the worst result is that the court agrees with the Administrative Law Judge's denial of your case.

If the Social Security Administration or court sends your case back for another hearing, it will take from three to eight months to have that hearing. If the Administrative Law Judge denies your case again, you can appeal that denial directly to federal court.

If the court agrees with Administrative Law Judge's denial of your case, we have the option of appealing your case to the Ninth Circuit Court of Appeals located in San Francisco. Before we file an appeal with the Ninth Circuit Court of Appeals, we have to be convinced that the federal court made an error that the Ninth Circuit will reverse. Ninth Circuit cases are time, work and paper intensive.

The bottom line for all of our clients is this: if we believe your case has merit, we will appeal all of your decisions until we cannot appeal anymore. The appeals take a lot of time, but we are determined to continue to work on your case until we win for you or until we reasonably cannot do anymore for you.

If you win your case and are awarded benefits, it can take two to six months to calculate your payment amounts and begin payment. If your claim is for SSI, Social Security will ask you to come in for an interview to verify your current and past income.

You can reach us Monday through Friday from 9AM to 5PM (except at lunch time from 12-1) at 503-452-2375. If you call us and we are not in, please leave a message and we will try to return your call within 24 hours, although sometimes we may take a little longer than that;

Alan Graf's phone extension is 1

Eleanor Ingram and Jackie Anderson's phone extension is 2

Kim Tucker's phone extension is 3.

You may leave a message for Subhan in the general mailbox.

Our address is
1020 SW Taylor St., Ste. 230
Portland, Oregon 97205-2555

As many of our clients have allergies, please refrain from using strongly scented products prior to visiting our office.

*****

The following is a portion of the Social Security handbook written for lawyers and social security representatives that I authored for the Oregon Bar Social Security CLE of 2004:

I. The Benevolent Purpose of the Act

Practicing social security law is one of the most honorable things you can do as a lawyer.

Besides pursuing and acquiring monthly disability benefits for deserving, chronically ill clients, as an active and regular participant you are positioned to play a part in keeping the social security system on track and true to its guiding principles. In addition to providing benefits to individuals, I believe that the system and its guiding principles act as an invisible glue that holds our society together, serving as a guidepost for and an example of practical idealism. The system was born from the highest of human ideals and represents the better and more selfless part of our collective mythology. Its existence, its function and the people it serves reminds us to strive for more kindness, compassion and service to the public in our own lives.

Arthur J. Altmeyer, the first Secretary of Health and Human Services and a principle architect of the Social Security Act, envisioned that the system would serve as a safety net that would prevent all Americans from falling into destitution. In 1968, Altmeyer stated that:

The President (FDR) believed strongly that, besides taking the emergency measures necessary to relieve the human distress caused by the Great Depression, it was essential to develop a long-range program to protect the American people from the ill effects of unemployment and other personal economic hazards.

(The Formative Years of Social Security, Arthur J. Altmeyer, University of Wisconsin Press, 1968, pg. 7).

At first, the safety net was designed to cover Americans who could not work due to old age. In 1954, President Eisenhower and Congress expanded the Act to include Americans who were disabled as well as those who had reached old age.

The courts have also frequently noted the liberal and remedial intent of the Act. See Gamble v. Chater, 68 F.3d 319 (9th Cir. 1995); Booz v. Secretary, 734 F.2d 1378 (9th Cir. 1984); and Benitez v. Califano, 573 F.2d 653 (9th Cir. 1978). See also Flaten v. Secretary of Health and Human Services, 44 F.3d 1453, 1459 (9th Cir. 1995)("...the Act should be construed broadly to accomplish its remedial purpose of protecting disabled workers..."); and see Houston v. Secretary of Health and Human Services, 736 F.2d 365, 371 (6th Cir. 1984)("...for it must be borne in mind that the Social Security Act is remedial in nature, seeking to provide assistance to those who are medically unable to secure employment, and is to be construed liberally")(citations omitted); and also see Walsh v. Secretary, 636 F.Supp. 358, 360-361 (E.D.N.Y. 1986) ("care must be taken 'not to dis-entitle old, chronically ill and basically helpless, bewildered and confused people...from the broad remedy which Congress intended to provide our senior citizens")(citations omitted); and further see Mitchell v. Gardner, 358 F.2d 826, 832 (U.S. App. D.C. 1966)(dissenting op.)("the obvious purpose of the Act was the attainment of a humanitarian end; and, like all remedial legislation, it should be liberally construed").

II. The Elements of the American Philosophy of Social Insurance

Dean J. Douglas Brown, another principle architect of the system, explained that there are five elements which govern the social security system. (The American Philosophy of Social Insurance, by J. Douglas Brown http://www.ssa.gov/history/brown2/html). Those five elements are:

1. The system must provide protection as a matter of right and not as a benevolence of a government, institution or an employer.

This element is particularly important for reminding all of your clients that they are not begging the government for handouts. Their claim for social security benefits is a right they enjoy as residents of this country. Making a claim for benefits is particularly hard on many people's sense of dignity. As an advocate it is good to remind your client[2] that what they are asking for is a right they have that they should not be ashamed to assert. An understanding of this basic element also can help shape your posture as an advocate to the Administration.

2. All citizens should be eligible to coverage under a system regardless of class or level of income.

This basic principle is useful when advocating for clients claiming Supplemental Security Income ("SSI") benefits. SSI applicants who may not have paid regular FICA premiums into the system for reasons of illness or that they were home-keepers or for any other reason are not any less deserving of benefits than regular wage earners. This principle should be emphasized with both the client and the adjudicators. In particular it is sometimes necessary to remind adjudicators that SSI claims should be treated with the same measure of respect and believability that are afforded to claimants under Title II (Social Security Disability Income ("SSDI")).

3. Under Title II, the individual worker establishes the level of his/her protection by his/her contribution to our economy.

As Dean Brown notes, "we still believe in America that a man/woman should be rewarded for his/her efforts...the motivation of the individual from within himself/herself is a primary and essential source of power in a free society."

4. The Social Security system should protect the family unit.

The system as it stands today provides some protections for children and for the spouse of the disabled or retired worker.

5. The Social Security system is based upon joint contributions by both employer and employee.

Under this last, but not least element, Dean Brown notes that there is a tremendous psychological value from personal contribution to a system as a stimulus to individual responsibility and dignity.

It is upon this sense of personal involvement and contribution by the citizens of this country that the Social Security system draws its inner strength and permanence.

III. The Strengths and Weaknesses of the Disability System

The system as it stands today has both strengths and weaknesses. As a practitioner it is useful to know what these are.

A. Dependability

One major strength of the system is that it is there and has been there for about 65 years. The checks show up for beneficiaries (most of the time) on time and dependably month after month by mail or by bank deposit. We should not however take this dependability for granted. It is the Rock of Gibraltar of the system.

B. Scope of Coverage

The scope of the system is widespread as well. Not only does the social security disability system cover wage earners and business people, but it also covers people who have not worked for pay on a regular basis. In other words, pretty much everyone is covered.[3]

C. Proportionality of Payments/Minimal Payments

Under Title II of the Act, the benefits paid are proportional to the amount of money previously earned, coupled to the regularity of the earnings. In other words, the longer you worked and the more money you made, the higher your higher monthly benefits will be. The benefits can reach as high as $2000 a month (as of January 2001). Supplemental Security Income, the non-income based disability benefit plan (Title XVI) provides about $550 a month in payments to disabled Americans. Clearly, $550 a month is not enough for someone - especially someone suffering from a chronic illness - to live on. Nonetheless, the truism that something is better than nothing can help move you as an advocate for your client in spite of this shortfall of the Act.

D. Constitutional Due Process

Another important positive aspect of the Act is the required constitutional due process inherent to the system. This required due process is based on the landmark case of Goldberg v. Kelly, 397 U.S. 254, 267 (1970). Under the holding of Goldberg, a welfare claimant is entitled to proper and timely notification (see also Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990)), the right to cross examine and confront witnesses, the right to retain counsel, the right to state their position orally, and the right to have the decision maker state the reasons for their decision based upon the applicable facts and law.

Understanding Goldberg and its progeny is essential in knowing what procedural rights you can assert for your client (especially when the going gets tough).

The following currently constitute the three biggest negatives of the Act:

E. Delays

The system takes way too long to process claims. There are six levels of appeal (not counting the U.S. Supreme Court) from the initial application to review by the Ninth Circuit. A claimant first applies for benefits with the state agency Disability Determination Services, which works in conjunction with the Social Security Administration. If a denial is issued, the claimant can request that the state agency review their decision as a "reconsideration." If a denial is issued again, the claimant then has sixty days to request a hearing in front of an Administrative Law Judge (ALJ). This administrative hearing provides the constitutional due process protections of Goldberg v. Kelly. If the ALJ denies a case, the claimant can then appeal to the Appeals Council in Fairfax, VA. The council can take over two years to make a decision.[4] If the case is denied by the Appeals Council, the claimant must then sue in Federal Court to appeal this final decision of the Administration. If a district court judge finds in favor of the Administration, the claimant can appeal that decision to the Ninth Circuit Court of Appeals. A case can take close to six years to get to the Ninth Circuit. The greater portion of that time however is spent within the social security system and not within the courts. Many cases are won at the court level, which means that a Federal Judge decides that the previous four decision makers were wrong. In my practice, this happens more often than not. A deserving claimant who is chronically ill should not have to wait years for benefits deserved.

F. Payments are too small because they are not in keeping with economic realities

In most cases the benefit payments are not enough to maintain a simple but dignified lifestyle. The payments have not kept pace with economic realities. We see movement and hear discussion in the legislature about protecting the fund from fraud, but there is very little discussion as to how to shorten the time for payments to occur and whether to raise the level of payment so that citizens can live a decent quality of life even with their impairments.

G. Accountability is lacking

Most adjudicators and administrators within the system are fair. However, there are a few bureaucrats in positions of power within the Administration that in varying degrees abuse their power. (Sound familiar?) This abuse can seriously harm claimants by delaying the payment of benefits to deserving beneficiaries for years while appeals eke their way through the system.

The Social Security Administration does not currently have an effective system of accountability in place for its state disability analysts and its Administrative Law Judges.

Within the past few years, federal magistrate Janice Stewart denied a plaintiff/lawyer the right to a judicial remedy for an alleged abuse of power by an Administrative Law Judge but consoled the plaintiff noting that

...he and countless disability claimants are left with a series of enactments which sound principled, fair, and bound to lead to a just adjudication, but which in reality are toothless pronouncements assuring nothing more than that they will be notified of-but will have no opportunity to challenge-the results of an investigation conducted by SSA. Congress simply has not mandated any particular standard for disqualification of ALJ's, seen fit to impose any particular deadlines on the SSA to finalize its bias procedures, or require that the interim procedures outlined in October 1992 follow any specific time line. The SSA has not imposed such standards or time lines on itself, but has instead reserved unto itself the authority to fashion "appropriate" actions.

Lowry v. Massanari, 2001 WL 34047027 (D. Or.) (Apr. 5, 2001) at 12.

The effect of this lack of accountability has had the effect of pushing the system in an adversarial direction contrary to the Supreme Court's dictate that social security disability hearings remain non-adversarial. See Richardson v. Perales, 402 U.S. 389 (1971); and Mathews v. Elrdridge, 424 U.S. 319 (1976). On a practical note, because you will probably appear in front of the same ALJs over and over again, it is worthwhile to avoid confrontation. There are times however, that you must protect your client's rights to make a record, which may require a certain amount of assertiveness. All in all, even the most confrontational situations within a social security hearing can be handled with civility.

IV. The Initial Client Contact Sets the Tone for a Long Term Relationship

When first meeting a client, it is advisable to pay good attention to how the client enters your office. In fact, if you have a reception area, go out to greet them and guide them back to your office keeping pace with their ability to walk. Notice their body language and their boundaries. Respect those boundaries. Be gentle with them, listen to them and be very clear and repetitive in your communications to them. Because the system can take many years to award benefits, you will in all probability be starting a very long term professional relationship. You want to start it correctly. Many physical and mentally ill clients have had multiple experiences with sexual abuse and other traumatic events. It is important to make your client feel safe with you. The more comfortable they feel with you, the easier it will be for them to communicate to you the important details of their condition.

V. Developing Your Client's Case

A. Presenting Your Client's Humanity

One important aspect of your advocacy is to present your client's humanity to the Administrative Law Judge. An ALJ, like any other human being, can become susceptible to cynicism after listening day after day to people complaining about their problems. It is your job as an advocate to try to dispel that cynicism by helping to create a communication bridge between your client and the ALJ. An adjudicator's cynicism can be diluted through the power of direct, personal and candid communication.

Before meeting with my clients for a pre-hearing consultation (usually a month or more before the scheduled hearing date), I carefully read through the entire social security file (which can be obtained at the Office of Hearings and Appeals), noting with particularity the following:

1. Earnings record and date last insured;
2. Date of Birth;
3. Date of Alleged Onset of Disability;
4. Dates of Application;
5. Dates of Initial Denials;
6. Past Relevant Work - which includes the details of the work including the number of hours sitting, standing and the amount of weight lifted. I also want to note how much money they made at the job.
I place the above information at the top of my notes so that I can have ready access to them at the hearing.
7. The Claimant's complaints and any witness's responses to questions posed by DDS;
8. The DDS doctors' reviews and assessments including examining and non-examining doctors;
9. Any other assessments by medical professionals;
10. Any opinions or comments by the claimant's past co-workers, employers and/or vocational rehabilitation experts; and
11. The entire medical record noting when and where the record supports a finding that the claimant cannot work full-time.
When I first meet with my clients for the pre-hearing consultation, I tell them that our meeting has two purposes. The first is that I will get to know them better beyond our chats on the phone and my read of their medical records. The second purpose of our meeting is to practice for the big event - the hearing. I tell my clients that I will never tell them what to say, but I will suggest to them ways that they can communicate their pain, their mental deficiencies and their limitations better to the ALJ.

For example, I instruct my clients to look right at the ALJ when testifying and to pay really good attention to the questions asked. I ask them to just answer the question posed and to not ramble on with their life story. I ask them to allow me to lead them through their complaints and trust me that I will ask the questions that allow them to tell their complete story. I also ask them to treat the ALJ and talk with the ALJ as they would talk with a friend about their problems.[5] See the next section for more detail on how the client should behave and testify at a hearing.

The administrative hearing is a big moment for people, who have waited over a year while struggling with a chronic illness, to get to tell their story to a real live human being. They want to make sure, understandably, that they do not leave anything out. Their trust in you from the get-go that you will help them present their complete story is an essential element in effective representation. It is your challenge as an effective advocate to present your client's story in the most complete and convincing manner within the short time frame allowed at the hearing. One hour is the usual time allowed.

B. The Structured Interview

It is good to use and have a structured but flexible interview for your pre-hearing conference with standardized questions.[6] A standardized questionnaire can keep you on track particularly with a mentally ill client who has a hard time staying focused.

The following is a sample outline of the questions I ask my clients during an interview. The outline is malleable and should be shaped and molded to fit the client's individual condition.

1. Name - Age

Age can be a decisive factor if the client is over fifty. At that point, the Medical-Vocational Guidelines (known as the "Grids") may prove decisive in the disability determination.

2. Work

The first question I usually ask clients is - "are you working?" You may be surprised to discover that during the year or more of the hearing waiting period some clients either got better, decided to "soldier on through" because they didn't want to starve to death while waiting for the hearing, or decided that they could work after all and really didn't need benefits.[7] If they are currently working, find out how long they have worked, whether it is full time or part-time, and whether the work has been sporadic or continuous.[8] You might decide based upon what they tell you to attempt to negotiate a closed period of benefits with the ALJ prior to the hearing. Some ALJs will entertain phone calls in the spirit of negotiation, while others expect letters and others do not want to hear from you until the day of the hearing. Know your judges' procedures. They all differ to varying degrees.

Next, question the client as to what type of work they have done in the past including their work history with dates and reasons for leaving the job. This can help you ascertain whether the client can return to that type of work and whether they have any transferable skills to other work. It will also help you determine whether your client has a history of decompensation on the job due to their claimed impairments.

The next question (the BIG ONE), is why they cannot currently work, along with the question of when their disability began. You want to know if they have a medically determinable impairment that has limited their ability to work full-time for at least a year or if they have a reasonable expectation that their impairment will limit their ability to work full time for the next twelve months.[9] Please note that the term "medically determinable impairment" does not mean "firm diagnosis." It is worth quoting the statute:

An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require. An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability. Any non Federal hospital, clinic, laboratory, or other provider of medical services, or physician not in the employ of the Federal Government, which supplies medical evidence required and requested by the Commissioner of Social Security under this paragraph shall be entitled to payment from the Commissioner of Social Security for the reasonable cost of providing such evidence.

42 USCA § 423

Noteworthy under this fundamental statutory section which defines "disability," is that there is no statutory requirement for the claimant to furnish "objective medical evidence" of an impairment. I will repeat this part again because it is so important and so misunderstood by many adjudicators. There is no statutory requirement to furnish objective medical evidence of an impairment.

As the statute provides, "medically acceptable clinical or laboratory diagnostic techniques" are sufficient to establish a medically determinable condition. Accepted clinical techniques include physical examinations, clinical observations, and clinical history. Psychiatrists rely almost completely on patient interviews to formulate their diagnoses. Don't let any adjudicator tell you that you need objective medical evidence to prove a medically determinable impairment or that your client must have a firm medical diagnosis. For example, "possible MS" can qualify as a medically determinable impairment because it has been established by "medically acceptable clinical diagnostic techniques" such as clinical observation and the process of eliminating other illnesses.

Back to work

Next, under the topic of work, it is good to have your client describe the progression of their illness and how it affected their last job or jobs. Usually with a chronic impairment, the illness does not pop up over night. Most disability claimants start suffering at the job and make valiant efforts to sustain their livelihood before finally succumbing to the effects of their disabling disease. This history is particularly important to know and to have the claimant describe to the ALJ at the hearing. This work history should include the intensity, the symptoms and the progression of the disease, including any unsuccessful work attempts.

3. How are you affected today (Physical Impairments)?
a. Physical stamina, muscle strength.
b. Numbness, tingling.
c. Memory, concentration, fatigue, social skills.
d. Pain.

Pain and fatigue are the two most prevalent and debilitating effects of physical ailments. The development of these two symptoms can be the most important part of your advocacy. These symptoms are also the most vague and hardest to quantify.

I divide my pain questions into the following categories:
1. How often do you experience pain? (Hourly, daily, weekly, etc.)
2. How severe is the pain experienced? (On a scale of 1-10, 10 being the most severe.)

This question can be sub-divided as follows: a) ask the claimant to describe the range of pain experienced from low to high; b) ask the claimant to describe the pain experienced when on medication until after the effects of the medications wears off; and c) ask the claimant to describe the pain in different parts of his body and contrast those parts in terms of severity of pain.

It sometimes helps to describe the severity of the #1 point on the pain scale as something like a mosquito bite, and the #10 point as something as severe as child birth or the need to go to the emergency room.

3. What physical positions or activities aggravate the pain?

This question allows the claimant to start to describe his or her actual limitations from pain. If a certain activity can't be performed with residual pain, then that activity becomes limited or non-existent. For example, to the question "can you vacuum your house," the answer might be "at times I can, but I pay for it later." Your follow up should be "how do you pay for it," or "how long are you down or unable to do anything after you vacuum?"

4. Where do you experience pain?

5. Do you have good days and bad days?

This question is extremely important to diseases like chronic fatigue syndrome, fibromyalgia and mental disorders. Many chronic pain claimants and mental health claimants have good days and bad days. On some days, they could perform the duties of a full-time job, but on other days, they may be confined to bed. It is important to establish through their testimony that certain activities they engage in are not indicative of their everyday lives. I emphasize this point because often an ALJ will conclude that because a claimant can do some activity part-time, he or she can also do that activity full-time.

Questions about a claimant's fatigue should follow, following the same format as the pain questions listed above.

4. Treatment

Now that you have discovered how much the client hurts, you must now find out what they are doing to improve their condition or treat their pain. Their attempts at treatment and their follow-through with treatment are crucial to credibility findings. See Social Security Regulation ("SSR") 96-7p.

Consistent with SSR 96-7p, you should obtain the following information during questioning at the hearing:

a. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;b. Treatment other than medication the individual receives or has received for relief of pain or other symptoms;
c. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
d. any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
You also want to ask your client if they have been following the treatment recommended, and if not, why not (e.g., they cannot afford it, or the side-effects were too severe). An ALJ must consider a claimant's reasons for not following treatment recommendations. SSR 96-7p. In Gamble v. Chater the Ninth Circuit Court of Appeals found that an ALJ erred by finding a claimant not disabled on the basis that a prescribed prosthesis would allow Plaintiff to work, where the claimant could not afford the prosthesis. Gamble v. Chater, 68 F.3d 319 (9th Cir. 1995).

5. Doctors and Treating Sources

The most important piece of evidence that you can submit is a treating doctor or psychologist's opinion about the functional limitations of your client. You should ask your client if his or her doctor supports their claim for disability. Be careful, however, to make sure your client understands that they should not be talking to their doctor about their disability claim. That is your job as the advocate. Some doctors will write in their chart notes that the patient is questioning them about disability, and this can reflect badly on the claimant's credibility.

Additionally, most doctors do not understand the statutory definition of disability and that the definition can vary depending upon the age, education and prior work of the claimant. It is up to you the advocate, to educate the doctor about what defines disability and whether his patient meets those definitions. See below for sample treating doctor phone interview.

You should find out from your client who their treating sources were at least a few years before the date of the alleged onset of disability, because those medical records can reflect on the progression of a disease or condition. Additionally, doctors who know their patients can comment on their accuracy and tendency or non-tendency to embellish or exaggerate.

6. Hospital and ER visits

7. Functional Limitationsa. Concentration and Memory
Your questioning here should focus on how the claimant's symptoms of pain and/or fatigue affect their ability to concentrate. Focus your questioning on whether they can follow something simple like an hour-long television program, or read a book, wash a load of dishes, or do the laundry. Besides the inability to sustain concentration, you may also uncover information concerning the claimant's inability to stay on task for two or more hours due to pain. They may have a need to lie down or put their feet up during the day. Again, establish how often these needs arise and how long the periods of rest are.
b. Sitting, Standing, Lifting, Walking, Squatting, Crawling, Bending, Turning, Twisting, Fingering, Feeling, Manipulating, Grabbing, Grasping, Squeezing, Pushing, and Pulling

Use these functional activities to assess and determine what your client can do, how long they can do it, and with what intensity (e.g., weight limitations or limitations on repetitive activities). Find out whether your client can do these activities on a daily basis or only a few days per week or per month, and also if there are some things they can only do on "good days."

The client's limitations in the use of the hands can make a big difference in what kind of job they can perform. This type of evidence should be developed both with your client and the treating doctor. Some typical questions might be: can the client grasp, how long can they grasp objects, can they use their hand for fine manipulation or for gross manipulation, or do their hands turn numb so they can't feel the objects they are fingering?

Read carefully and understand the definitions of sedentary, light, medium, heavy and very heavy work in formulating your questions to your clients. See 20 C.F.R. § 404.1565; SSR 83-10. Just because you can lift 10 pounds frequently does not mean you can do light work if you cannot stand on your feet more than 1 hour per day. I recommend that anyone who does not know how much ten pounds really weighs to go to a gym and lift a barbell that is rated at ten pounds, and repeat that lifting up to 1/3 of the work day, which would qualify you (if you were able to sustain such activity for months on end) for only sedentary work. A gallon of milk is used as a reference point by some ALJs as weighing 7 pounds. At hearings, it is not unusual to hear a claimant asked if they can lift a gallon of milk or a bag of groceries.

8. Activities of Daily Living

What your client does during his or her day can serve as a primary basis for a favorable or unfavorable decision. Initially, when your client first applied for benefits, he/she filled out a form for DDS stating what his daily activities were. You should look at these initial forms and base some of your questions to your client on them. There are a few purposes behind this approach.

First, you want to reacquaint your client with his previous testimony and make sure he hasn't substantially changed his testimony.[10] The ALJ may look at his prior testimony to see if there are any inconsistencies with the claimant's current testimony. Next, you want to determine if the claimant's condition has gotten better, worse or remained the same.

Further, it is advisable to expand upon the claimant's responses from the form as the form does not encourage detailed answers. For instance, if the DDS form asks if the claimant can vacuum and he answered yes, then it is important to establish just how much the claimant can vacuum during the day and whether there are any residual effects such as pain and/or fatigue from that activity.

It is also important to establish what exactly the claimant does around his house; how much time he spends with each activity; what effects those activities have upon him such as causing pain or other symptoms; and how much time he needs to recover from those symptoms.

If the claimant lives with another person, establish what percentage of the household duties the clamant does and whether the claimant needs assistance in performance of those duties.

You also want to ask whether the claimant gets any help with household activities from family, friends or care givers. If those people are available, I suggest having them call you so you can guide them through composing a letter which gives their assessment of the claimant's limitations.[11]

9. Education

Questions here should seek the type, depth and history of education from formal to informal. Also, find out what job skills, training and special tasks a claimant has had, especially within the past fifteen years.

10. Other financial means of support

Some ALJs are interested in this information, although arguably it is not relevant to a disability determination. Nonetheless, it is helpful to know if your client lives under the Morrison bridge or is living off his rich uncle Paul.

11. Other disability determinations
If the client has been found disabled by another forum or institution, you should secure those records as that determination will be considered by the Administration in making its own determination. A Veterans Administration determination of disability at any percentage is now relevant to a social security disability determination. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir 2002).

C. Mental Health Questions
1. Tests Taken - WAIS, MMPI, others.
2. Names and addresses of mental health professional who have evaluated or treated the claimant.
3. The claimant's mental health diagnosis.
4. Ability to concentrate.

Questions here should focus on the claimant's ability to stay on task and stay focused for two hours or more. Also, the ability to concentrate can vary depending on the severity of the mental state at any given time (e.g., bipolar disorder). Gather information on a longitudinal basis over a number of years to determine if your claimant's condition has declined, improved or stayed the same over time.[12]
A key point is how pain and/or fatigue affect your client's ability to concentrate and/or stay on task. You also want to know how the combination of pain and mental disorders affect their ability to concentrate and stay on task. This question, as noted below, is an important one in cross-examination of the Medical Expert (ME).

5. Question your client about how their mental illness previously affected their ability to work to determine if they have had a history of decompensations while on the job.

6. Ask your client how he or she gets along with people. Do they have friends? Do they contact or see relatives? How do they feel in public? Do they avoid going out, and how much time do they spend by themselves in their apartment or house? Further, ask how they do with people in authority positions such as employers. How do they feel about being pressured to perform at a certain rate and pace and always being expected to meet someone else's expectations?

7. Ask your client how he or she handles stress, pressure, and criticism that they will encounter on a regular basis at a job. Do they have to leave their work station and cry? If so, how often and for how long? Do they have an anger problem? Do they blow up easily? When they blow up are they loud, do they curse, do they destroy property, or have they injured anyone including themselves?

8. Ask the client if they are taking care of themselves in terms of their personal habits. This is sometimes apparent from both personal observation and smell. Do they have cycles in which they neglect themselves. Claimants with Bi-polar disorder will have times in which they fall apart. Try to determine their cycles and how long they last.

9. Ask them whether they once participated in activities that they now no longer practice. Do they have any activities that they do for fun or enjoyment?

10. Ask the client about both short and long term memory. If their memory is bad, how do they compensate for it, e.g., notepads, lists, people reminding them. Are there examples of failings of memory where they did something dangerous such as leaving the stove on?

11. Ask them about the effects of depression. Ask if they feel depressed, if they feel worthless, if they have recently lost or gained a lot of weight, how they sleep, and if they think of suicide or have attempted it.

12. Do they experience anxiety or anxiety/panic attacks? If so have them describe the symptoms of the attack, including the severity and frequency.

13. Do they experience shakes, tremors, or have any part of the body that they cannot control?

14. Do they have hallucinations or delusions? Describe this to your client as seeing or hearing things that they have not seen or heard before OR things that they think they should not see or hear but do.

15. Ask your client if she believes someone is trying to harm her, or if she thinks others are talking behind her back.

16. Finish the conference with a claimant who is basing their claim on mental health problems by asking them if there are any other ways in which mental problems would prevent them from working.

D. Advice to the Client regarding his/her testimony at the Hearing

Summarize and describe for your client what happens at the hearing. Dispelling the unknown makes for less uncertainty and less anxiety. Inform the client that when they arrive at the hearing building, ALJs or other social security workers may observe them outside the hearing room and reach conclusions based upon their outside observations. But, see 20 C.F.R. § 404.953, which provides that the ALJ cannot base her decision on evidence outside the record.

1. Clothing

I advise my clients to dress casually and not to dress up. In fact I had a client who came to the hearing with her nails and hair neatly done. The ALJ later used her appearance as one factor in disqualifying her. Subsequently, a federal judge rejected the ALJ's use of the claimant's clothing as a credibility factor.

2. Testify truthfully

Emphasize to your client how important it is to be accurate and truthful at the hearing, including any criminal acts they may have committed as well as drug use. The hearings, the evidence accumulated and the decisions rendered are private and not open for public scrutiny except in limited circumstances.[13]

Play acting or pretending to cry should be discouraged; however, the client need not suffer silently or minimize their problems (which is the case more often than not)

3. Areas of Testimony

Let your client know questions will be asked of them at the hearing concerning:
1. Work history
2. Education
3. Medical history
4. Symptoms
5. Their estimate of your work limitations
6. Their daily activities.

4. Work History/Education, Job Training

For work history, inform your client that she will be asked to describe job duties on her last job and on all significant jobs she has had during the past fifteen years. The judge will want to know how much weight she had to lift on each job and about how much time during the workday that she spent sitting, standing and walking on each job. He will also ask what difficulties she had performing past jobs because of her health, and why she left each former job, especially her last job.

The judge will also ask about job skills. If the client worked at semiskilled or skilled work, it is important that you prepare your client to describe her skills accurately. Make sure the client is aware to not puff up her skills. This is not a job interview.

5. Symptoms

Symptoms are how the claimant feels. It's up to the client to describe those symptoms to the judge in as much vivid detail as possible. If the judge says to your client, "Why can't you work," explain that she should answer the question in detail and not say, "It's because I have arthritis," etc. Lots of people who can and do work have the same impairment, so telling the judge the name of the health problem really tells him nothing. What the judge needs to know is the severity of your pain and other symptoms.

Explain to your client to be specific when describing her symptoms. Don't just say, "It hurts." Describe what the symptoms feel like, the same way they have probably described their symptoms to members of their family. Describe the nature, intensity, and location of pain, whether it travels to different parts of their body, how often they have pain, and how long it lasts. Explain if they feel different from day to day Explain what starts up their pain or other symptoms, what makes it worse and what helps relieve it.

6. Examples of good and bad testimony

The wrong answer:
ALJ: How far can you walk?
Claimant: Two blocks.
A person who talks to a judge the same way he talks to a friend will answer the question this way:

The right answer:
ALJ: How far can you walk?
Claimant: Judge, I can't walk more than about 2 blocks without stopping to rest. Just yesterday, I went to the store which is only about a block and a half from my house. By the time I got there, my back felt like it had a hot spike driven into it. I started limping. All I bought at the store was a loaf of bread. I could barely carry it home. On the way home, I had to stop three times because my back hurt so much. When I got home, I sat down in my recliner chair and put my legs up before I even put the bread away.

The wrong answer:
ALJ: How long can you sit?
Claimant: Twenty minutes.
When the judge hears this answer, the judge looks at a clock and writes down that the claimant had been sitting there for forty minutes when he answered that question. Thus, the judge concludes that this claimant is a liar.

What this claimant meant, of course, is that he could sit for 20 minutes in a work situation, then stand or walk for awhile and return to sitting. In all likelihood, a claimant with a sitting problem, after forcing himself to sit through an hour-long social security hearing, will go home and lie down for a long time in order to relieve the pain in his back. He answered the question truthfully. He can only sit for about 20 minutes in a work situation. If he forces himself, he can sit longer but then it takes some time to recuperate. It is important to explain all this to the judge so he can understand what you are able to do day in and day out in a work situation.

Here is an example of a good answer to a question about sitting:
ALJ: How long can you sit?
Claimant: If I force myself, I can sit here for perhaps a whole hour; but I'll have to go home and lie down and I won't be much good for the rest of the day. When I am trying to do things around the house, like pay bills, I only sit for about 20 minutes at a time and then I get up and walk around for 15 or 20 minutes before I go back to sitting. If I were on a job where I could change positions between sitting and standing or walking, the length of time that I could sit would get shorter as the day wore on. Sitting is really hard on my back. It's better, though, if I can sit in my recliner chair with my legs up. I can sit in that chair for a long time but I find it really hard, for example, to pay bills sitting in that chair. I usually sit at the dining room table when I pay bills.

7. Good Days and Bad Days
Another problem comes up when you have good days and bad days. For example, on good days, the client might be able to sit or stand or walk for much longer than she can on a bad day. If your client has good days and bad days, have your client describe what it's like on a good day and what it's like on a bad day. Be prepared, though, for the judge to ask the client for an estimate of how many days out of a month are good days and how many days are bad days. A lot of people answer such questions as, "Well, I never counted them." Count them. The judge will need this information.

8. Mental Limitations
Many people who suffer physical impairments are afraid to talk about the emotional component of pain for fear they will be viewed as crazy. Having such problems doesn't mean they are crazy. It probably means they are normal.
Explain to the client that it is important that she be willing and able to describe these emotional problems because it is often the emotional aspect of pain that interferes most with the ability to work.
Common problems include:
1. difficulty concentrating,
2. forgetfulness,
3. nervousness,
4. a quick temper,
5. difficulty getting along with others,
6. avoiding other people,
7. crying spells, and
8. depression.

9. Aspects of the Job that Cause Stress
The client may be asked how they can handle stress on the job. Note the following aspects of a job that could cause stress and include them in your questioning of the client at the hearing.
1. meeting deadlines,
2. completing job tasks,
3. working with others,
4. dealing with the public,
5. working quickly,
6. trying to work with precision,
7. doing complex tasks,
8. making decisions,
9. working within a schedule,
10. dealing with supervisors,
11. being criticized by supervisors,
12. simply knowing that work is supervised,
13. getting to work regularly,
14. remaining at work for a full day, and
15. fear of failure at work.

Sometimes people find routine, repetitive work stressful because of the monotony of routine, no opportunity for learning new things, little latitude for decision-making, lack of collaboration on the job, underutilization of skills, or the lack of meaningful work.

10. Daily Activities
The judge's questioning about your client's daily activities provides the client with a golden opportunity to help his case by giving the ALJ a lot of details. You can see how the following nonspecific answers prevent the judge from hearing very useful information:
ALJ: What do you do on a usual day?

Claimant: Nothing.

Sitting staring at a television set is doing something. Sitting staring out the window is doing something. Sitting staring at a blank wall or at the ceiling is doing something. Have your client describe their actual day to the ALJ in greater detail than the above answer.

Another bad answer:

ALJ: What do you do on a usual day?

Claimant: Oh, I do some cleaning, cooking, straightening up the house, sometimes some laundry and going to the store.

This is a truthful answer since this person does all of these things, but it doesn't help his case at all. He failed to mention the fact that he only does cleaning for a few minutes at a time; he cooks only simple meals because he can't stand in the kitchen long enough to do anything more elaborate; he has help doing the laundry; he never goes to the store alone; and he always takes along his 15-year-old son to carry the groceries. In other words, the brief description of the things that he did during the day does not support his testimony about disability. On the other hand, the details about how he goes about doing these things do help his case.
To help the judge live through the client's day have your client run through their usual day hour by hour. Have the client emphasize the things done differently now because of the client's health problems.

VI. Witness Development

A. The Treating Source's Opinio
The most important piece of evidence you can secure and submit is the treating source's opinion. Social Security regulations distinguish between opinions coming from "acceptable medical sources" and those from "other sources." 20 C.F.R. §§ 404.1513(a) and (e), 416.913(a) and (e).[14] Acceptable medical sources specifically include licensed physicians and licensed psychologists, but not nurse practitioners, mental health counselors, chiropractors or other non-doctor practitioners. 404.1513(a)(1) and (3); 416.913(a)(1) and (3).
However, a nurse practitioner or any other practitioner working either as part of an interdisciplinary team or in conjunction with a physician or psychologist constitutes an acceptable medical source. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996).

Due to conflicting regulations, ethical duties and orders from OHA, I no longer send letters or forms to treating sources requesting their opinion as to the client's functional capacity. Instead, if I can, I set up a phone conference with the treating doctor, ask them specific questions while explaining to them what I am after in terms of social security law. I listen and take notes. At the end of my discussion with them I repeat my notes of our conversation asking them if it accurately reflects their opinion and have them send me a letter incorporating those statements.

I follow these procedures for a number of reasons. First, keep in mind the letter generated from the treating source regarding the client's ability to perform work like functions is the most important piece of evidence you can secure on your client's behalf. The content, reasoning and tone of the letter can make or break your client's case. Second, sending a letter to a doctor asking them questions can lead to incorrect or inaccurate responses depending upon whether the doctor understood what was asked of him or her and whether they took the appropriate amount of time to give a reasoned response. As an advocate, you relinquish control over the doctor's response by sending them a letter or form without being able to communicate with them as they respond. Also, you risk having in your possession an unfavorable opinion in writing from the treating source.

Finally, by personally talking with the treating source you have the ability to answer questions from the doctor and clarify exactly what information and opinions you are looking for. By that, I don't mean to imply this gives you an opportunity to tell the doctor what to say. It does, however, allow you to shape the doctor's response particular to the regulatory requirements. For example, the statement "[i]n my opinion the client is disabled" is not specific enough to satisfy the regulations and will not be given much weight by an ALJ.

The following provides the structure I use in a phone interview with a treating source.
1. First explain to the source that you are the patient's social security lawyer and that the doctor's opinion is the most important piece of evidence in securing benefits for the client. Doctors need to know this information, especially those who are reluctant to give medical opinions. If a doctor responds to my explanation that they do not give disability opinions or they are not a specialist in disability evaluations, I state to them the following:

Doctor, as you know pain and fatigue are subjective symptoms. I know you are aware that there are no medical tests or technology that is available today to accurately ascertain the level of a patient's pain. In fact, some patients can more easily tolerate the same amount of pain than others. Given the nature of pain, social security judges especially value your opinion regarding the severity of your patient's symptoms because you have the medical education and background, you have seen the patient through a longitudinal period of time, you have made clinical observations of your patient, you have performed physical examinations of your patient and you have prescribed the type and proper amount of medication for pain and the symptoms complained of based upon all of the above factors. Correct?


You can also explain to the doctor that you are not asking her for a "disability opinion." You might explain to the doctor that
Doctor, the term "disability" in social security is a precisely defined term dependant upon statutes, regulation and case law. Its meaning is different from common parlance. For example, did you know that if your patient can work regularly part-time at a job, they can still qualify for disability?

If appropriate, you can also add here that if the claimant is limited to sedentary work and is over fifty years of age, she may be found disabled on that basis alone.

What you are doing is educating the doctor and letting them know that they can be helpful to their patient even though they previously thought the contrary

If the doctor is ready to proceed then:

2. Explain the structure of the interview: you will ask questions, take notes, repeat them back, verify their accuracy, and probably ask for a letter.

3. The questions:

a. Credentials-specialties

b. Are you the claimant's treating doctor, psychologist, etc.?

c. How long have you been treating her?

d. With what regularity?

e. What's your diagnosis, prognosis?

f. What treatment has been/is currently prescribed?

g. Depending upon the claimant's impairments, at this point I list some of the complaints of the claimant - what she claims she can and can't do - and ask the doctor: based upon the patient's history, your clinical observations and the objective evidence in the record, do you believe that these claims are accurate? Get the doctor to commit to a time period for these limitations as well, even if they didn't treat the claimant during the time period (as long as they have the medical records available for that time period that they can review).

h. If the doctor affirms these claims, you are home free. If they have any doubts about the claims, get them to quantify exactly how severe and debilitating the impairments are. Also, it is good to have the doctor reference their medical notes and charts in writing their opinion, giving the opinion more credibility and weight.

i. Ask the doctor if their patient is an accurate historian, or whether they exaggerate their symptoms.

j. Ask if the patient is following the prescribed medicinal or other treatment regimen.

k. If you speak with a non-physician, make sure you have them include in the letter (if this is the case) that they work in conjunction with a doctor or psychologist or part of an interdisciplinary team. If they can specifically describe how the doctor or psychologist is involved in the care, treatment or diagnosis of the patient, all the better.

If you are happy with the source's answers, repeat your notes back to the source and ask them to write a letter to you reflecting those notes. Some practitioners write a letter to the doctor reflecting their conversation with the doctor and asking the doctor to sign it, indicating that the letter reflects their opinion. However, a letter from the doctor in his own words, on his own stationary is a much more powerful statement than a lawyer's letter with a doctor's check mark at the bottom of the letter.

B. Other Witnesses

Friends, family members, and former employers make up the pool of potential witnesses. Witnesses can testify live or submit letters describing their personal observations of the claimant's impairments and physical and mental decline. See Merrill ex. rel. Merrill v. Apfel, 224 F.3d 1083 (9th Cir. 2000)("[t]his Court has held that an ALJ, in determining a claimant's disability, must give full consideration to the testimony of friends and family members"), citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993).

The Ninth Circuit found that a claimant met the listings based upon the written testimony of witnesses who were familiar with plaintiff's condition. Schneider v. Commissioner, 223 F.3d 968 (9th Cir. 2000). The holdings from Dodrill, Merrill and Schneider support the following premises:
1. Written testimony from a friend or relative should be given as much weight as live testimony (though here the law and the reality at the hearing may not intersect exactly). Note that written testimony will not be subject to cross examination by the ALJ;
2. Consistent with Merrill, the testimony of a mother concerning her child can trump medical opinions;
3. The ALJ cannot reject lay opinions based solely on the reason that the witness knows the claimant or is related to them. The rejection must be germane to the testimony, not the witness.
4. The ALJ must give specific and legitimate reasons for rejecting the testimony of a lay witness.
5. In the case of a disease such as chronic fatigue syndrome or fibromyalgia, where there is little or no objective evidence to substantiate the impairment, the testimony of lay witnesses should be sought to fill in the record as to the severity of the impairment and the credibility of the claimant. See SSR 99-2p.

In practical terms, how do these cases and rules translate into your use of other witnesses at hearings? As an advocate, you have two goals at the hearing. The first goal is to have the ALJ issue a favorable decision. The second goal is to create a record for appeal. The second goal and first goal sometimes conflict. Although live testimony is usually more convincing and forceful than written testimony, you bear the risk of having witnesses who will testify in an inconsistent manner with your client or each other. You bear the risk of a cross examination that destroys not only the witnesses' testimony but your client's as well. In other words, the more variables you introduce at a hearing, the greater the chance of something going wrong. You can count on it.[15]

The bottom line is: know your ALJs, what convinces them, and what procedures they use with other witnesses, and with that in mind weigh the pros and cons of having live witnesses. Testimony by letter is allowed in this informal hearing and must be considered.

VII. The Hearing

A. Opening Statements

Opening statements have a variety of purposes. There are various schools of thought as to whether to tender an opening statement and/or a pre-hearing memorandum. If you suspect that the ALJ is planning to deny your client benefits, you probably do not want to tip your hand as to the legal issues that you may raise later in an appeal brief. That said, be sure to raise all the issues that can only be decided at the hearing. You might waive them if they are not raised at the hearing. See Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999).

Depending upon the ALJ, the opening statement is a way of letting the ALJ know what you believe are the relevant issues in the case and what evidence in the file supports your client's position that he/she is disabled. There is also another less obvious reason for an opening statement. The opening statement can be directed (indirectly) at the medical or vocational expert in noting to them what you expect the medical expert to say. The ME or VE may have passed over some key piece of evidence and your opening is a way of informing them of that evidence or a listing that you think the client met, which did not occur to them in their study of the case.

An opening statement can be used to tie all of the facts together. Show the consistencies between psychological reports, even ones that on their face are unfavorable to your client. Also, noting the client's work record is important with some ALJs who give more credence to someone who has a long and regular work history. The reverse can be argued for someone who has never been able to work consistently due to a longstanding disorder.

If you elect to present an opening statement, make it short and to the point.

B. Client Testimony

Depending upon the ALJ, you may get to question your client first, or be allowed to do a follow-up to the ALJ's examination of your client. If you are doing a follow-up be sure to clarify any ambiguities or inconsistencies in the record. Also, make sure that at the minimum you elicit testimony from your client about her specific impairments, the severity of the impairment, and how regularly those impairments or limitations occur. Later, you should utilize this part of the client's testimony in formulating a hypothetical to the Vocational Expert (VE) during cross examination.

I have been at hearings where the ALJ cites a fact that was either not in evidence or was in some other way inaccurate in posing a question to my client. The question is thus a trick question. At times, I have objected to the question as presenting facts that are not in evidence in support of a question. It is a delicate objection as you are basically telling the ALJ that she is misquoting the record (which is exactly what is happening). I try to have the exact page in front of me, and as I object I read the complete statement showing that the question is misleading. Warn your client before hand if she is going to appear in front of an ALJ who has this bad habit.

C. Cross examination of Medical Experts

In some hearings, the ALJ will have a medical expert present to help clarify the record and give an opinion as to the severity of the claimant's impairment and how the impairment affects their ability to perform basic work activities.

In deciding how and if you should cross examine a medical witness, be careful you do not give the witness an opportunity to further substantiate an adverse opinion. A question such as, "Doctor, please point out the documents in the record that substantiate your view that my client can work" (said with a smirk on your face), is especially dangerous. The smirk will rapidly disappear when the doctor points to the documents. Another self defeating question may be, "Doctor, have you considered the opinion of the treating doctor in formulating your adverse opinion?" The answer "yes," does not help your client's case.

Cross examination can be helpful if you are sure that the medical expert missed something in the record. In that case a question should be phrased as follows:

Doctor, you based your opinion that my client can work on the following opinions and documents [list those documents]. Would it change your opinion if there was evidence that [paraphrase the evidence you believe the doctor missed].

If the doctor says no, don't go any further. This is an argument for appeal.

The bottom line for cross examination of medical experts' functional opinions is that it is a dangerous row to hoe, fraught with pitfalls.

With that warning in mind, cross examination can also be very fruitful in tearing holes in an adverse opinion or developing an additional limitation that could later help you establishing disability coupled to the VE's testimony. Cross examination can also come in handy in establishing medical equivalence. Equivalence, in many cases, is not considered by the doctor in her testimony as to whether a client met, equaled, or the combination of the client's impairments equaled the listings. See SSR 83-19.

1. The "Moderate" Limitation

In the area of mental health, agency psychologists often give testimony as to the severity of the claimant's mental health under the "B" criteria of the Psychiatric Review Technique. This type of testimony is usually a combination of education, guessing and voodoo, especially considering the medical expert has never seen the claimant (except at the hearing) and can only go by what the medical records show. Many times, the medical expert will take some sort of average to determine whether a claimant has mild, moderate, marked, or extreme impairments in any given area without stating that is what they did.

Cross examination can reveal that methodology. If you can get a doctor to admit that at times your client has marked impairments (or even have them admit that at times their impairments are more than moderate) and at other times they are mild, and he averaged those impairments to get a "moderate" impairment, you are on your way to a win. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00 C 1(where the Administration defines the term "marked" as serious difficulty in performing only one activity among many in a particular category). You can use this definition in constructing your cross examination.

Below is an example of questions that can be posed to psychologists or psychiatrists in cross examination on the subject of "moderate" limitations.

a. Moderate as an Average of the Claimant's Severity of Symptoms

Advocate: Doctor, you concluded that my client has a moderate impairment in the ability to concentrate and stay on task is that correct?
Doctor: Yes.
Advocate: Doctor, is it true, generally speaking, that people who suffer from mental diseases suffer from symptoms that vary in severity?
Doctor: Yes.
Advocate: And isn't it true doctor that people who suffer from this mental disease can have symptoms that vary during the day---and from day to day as well?
Doctor: Yes.
Advocate: Isn't it true that the claimant who has this disease, like other people who suffer from this disease, has symptoms that vary in intensity?
Doctor: His symptoms vary some.
Advocate: (Here if you are experiencing a difficult ME, point out varying GAF scores, and varying reports, which you will inevitably find in practically any psychological record).
So Doctor, would it be accurate to say that when you state that the claimant's limitations are moderate, you are actually giving us an average of the severity of her symptoms?
(Difficult) Doctor: It is an average, but it doesn't vary much from moderate.
Advocate: But her symptoms do vary, don't they doctor.
Doctor: Yes they do.
Advocate: And there are times when her symptoms are more than moderate, correct?
Doctor: Yes they are.
Advocate: And given the nature of her disease, those variations could happen daily, correct?
Doctor: It looks like it happens more monthly than daily.
Advocate: And when variations happen, how long do they last?
Doctor: Probably a few days.
From this cross examination, you have established that your client's limitations in their ability to concentrate and stay on task are greater than moderate for a few days.
Although the term "marked" or "moderate" is not defined in 20 CFR Pt. 404, Supbt P. App. 1, Listing 12.00, those terms are defined in the section of the regulations entitled "functional equivalence for children." See 20 CCF 416.926a(e). In this section, "marked" is defined as "more than moderate but less than extreme."

Thus, if you get a doctor to say that your claimant's symptoms are "more than moderate" at times, you have won half the battle.

b. Moderate as an Indicator that the Claimant Can do Some Activities but not Others
The mental health listings 12.00C1 and C2 and C3 are also instructive for composing questions for cross-examination of psychologists or psychiatrists.
12.00C1 provides:

We do not define "marked" by a specific number of different activities of daily living in which functioning is impaired, but by the nature and overall degree of interference with functioning. For example, if you do a wide range of activities of daily living, we may still find that you have a marked limitation in your daily activities if you have a serious difficulty performing them without direct supervision, or in a suitable manner, or on a consistent basis, or without undue interruptions or distractions.

Noting the above definition and parameters of the term "marked," you can structure your cross of the Medical Expert ("ME") by asking them to rate each activity of daily living separately, e.g. cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office.

You should ask the ME if the claimant has difficulties with any of these activities. On each of these activities ask the ME if the client can do them without direct supervision, on a consistent, useful, routine basis, and without undue interruptions or distractions. 12.00C1.

Most of the time, an ME will testify that the claimant has a moderate limitation because the claimant could do some of the above listed activities pretty well, but had problems with others. In other words, an assessment of "moderate" in this case is statutorily incorrect. See also Listings 12.00C2 and C3 for limitations in social functioning and concentration, persistence and pace.

c. "Moderate" as the Top Line Indicator

There are some MEs who believe that no one other than a claimant who has to be institutionalized exhibits marked mental disorder limitations.[17]

If you have an ME who insists on giving moderate limitations for a client, despite their very severe mental condition, ask the ME to describe a hypothetical person with the same disease and with marked limitations. Then ask them what that person would look like if they had extreme limitations. You may be able to show that their standard is completely out of line with the regulatory scheme.

d. "Moderate" as a Lazy Way of Avoiding Quantifying the Disease

Sometimes MEs will use the term "moderate" as a lazy way of avoiding quantifying an illness. A claimant may have had a number of suicide attempts in the past year, but in between she has done relatively okay. Nonetheless, this hypothetical claimant tried to kill herself three times, and during the period of time of the suicide attempts she would not have been able to work.

Thus, the question to the ME would be:
Advocate: Doctor, should I assume that when you testify that my client has moderate limitations in social functioning, you are not including the three times she tried to kill herself?
Doctor: That is correct It appears that the vast majority of the time, she functions fairly well, other than those few times she decompensated.
Advocate: And during those times she attempted suicide, would it be fair to say that her conditions reached the marked or extreme level for about one week?
Doctor: She was extreme for one day, and then marked for a few days following that while she was confined to the hospital.

Through this cross-examination you have established a question regarding your client's ability to sustain employment on a long-term basis - which should serve as a basis for your cross-examination to the VE.

When appropriate, get the doctor to quantify her opinion in terms of time frames and the effect the limitation has on the claimant's daily functioning.

e. Moderate as a Limitation Without the Inclusion of Physical Symptoms

Advocate: Now, isn't it true that the opinion you give today regarding the limitations of my client are only based upon psychological symptoms?
Doctor: Yes.
Advocate: And isn't it true that pain and fatigue can limit one's ability to concentrate and persist on task?
Doctor: Yes.
Advocate: So when you state that my client's ability to concentrate is limited to a moderate degree, isn't it true that you did not include pain and fatigue as part of that limitation?
Doctor: Yes.
Red Flag: Don't go any further with this line of questioning! For example, if you now ask the ME how much more limited your client's ability to concentrate will be given her pain and fatigue, you might get an answer you don't want.
This is an example of one of the prime rules of cross-examination. Stop when you are ahead!

D. Pain and Fatigue

The Cotton test is key to proper cross-examination of a medical doctor concerning how pain and fatigue affect someone's ability to, concentrate, stand, walk, and lift; and their need to take rest breaks from sitting, standing, or doing any physical activity.

The Cotton test imposes only two requirements on the claimant: (1) she must produce objective medical evidence of an impairment or impairments; and (2) she must show that the impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of symptom." Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.1996) citing Cotton v. Bowen, 799 F.2d 1403, 1407-1408 (9th Cir. 1986). The claimant does not need to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it reasonably could have caused some degree of the symptom. Id.

With that test in mind, cross-examination of a doctor might look like this:
Advocate: Doctor, I assume you are familiar with the methodology of diagnosis, correct?
Doctor: Yes.
Advocate: Isn't it true that there are three components to a diagnosis: 1) the patient's complaints; 2) the patient's medical history; and 3) the results of any medical, laboratory testing, physical examinations and clinical observations?
Doctor: I suppose you could group it that way.
Advocate: And it appears from the record that my client has been diagnosed with musculo-skeletal disorder and myofascial pain syndrome, correct?
Doctor: Yes.
Advocate: Can those disorders produce the type of symptom my client complains of, e.g., pain in the lower back, etc. Please note doctor that I am not asking you if these conditions cause the severity of pain that my client complains of. I only ask you if these conditions can cause the type of symptom claimed.

Doctor: Yes, these diseases can cause pain.
You now have established all you need to meet the Cotton criteria. The ALJ must then proceed to assess the severity of your client's complaints based upon the factors set forth in SSR 96-7p.

Unless you really know your stuff regarding the diagnosis, progression and medical treatment of a particular disease, you are asking for trouble if you try to get into an academic fight with a medical doctor. You will lose that one. Also, if the diagnosis is a "probable or possible" diagnosis, ask the doctor if the treating physicians have any doubt that the claimant is suffering from pain, fatigue or other symptoms of record.

Again, remember to follow the age-old cross-examination adage - do not question an ME unless you know how they will respond.

In their direct testimony, if a doctor has testified to certain limitations, but has not given any medical reason or justification for his opinion, you might decide to leave things alone.[18] On cross-examination, you might inadvertently give the ME a chance to explain and support their prior testimony. That could sink your client's chance for a remand, if that is the only available option for them.

E. Sustainability

MEs are sometimes asked at hearings to give their opinion as to the "residual physical functional capacity" of the claimant. See Form SSA-4734-U8. A doctor who has never seen the claimant in a professional setting is asked to give their opinion based solely upon the medical record as to how much the claimant can lift during the course of an eight hour day; how much they can sit, stand and walk, how much they can push and pull, how much they can climb, balance, stoop, kneel, crouch, and crawl; how much they can reach, handle, finger and feel; and whether they have environmental limitations, communication limitations and visual limitations.

The answers provided by MEs in this regard are usually based upon minimal evidence and mostly their "feel" for how severe the claimant's symptoms and impairments are.

Cross-examination of an ME in this area should consist of pressing the ME for the medical and objective[19] basis for their particular assessments and limitations. If there was a physical capacity evaluation done, it is important to ask if there was a follow-up to the examination. For example:

Advocate: Isn't it true doctor that activities that aggravate a medical condition may cause pain and symptoms that might either be mild on the same day and then elevate in intensity the following day?
Doctor: It could.
Advocate: Was there a follow-up done by this examining doctor (or physical therapist) with the claimant regarding her condition the following day?
Doctor: No, there was no followup.
Advocate: So, isn't it true doctor that we really do not know how the activities of sitting, standing and lifting that she participated in affected her the next day?
Doctor: Correct.

F. Other Tips for Dealing With MEs

MEs are not allowed to comment on non-medical matters nor draw a conclusion as to whether a person is disabled, even if asked to do so. See SSA Medical Expert Handbook. The ME is not allowed to question the claimant, unless the advocate agrees to the questioning.[20]

1. Conflicts of Interest

20 CFR § 404.1519q spells out which medical doctors cannot be used for testimony at a hearing:
All implications of possible conflict of interest between medical or psychological consultants and their medical or psychological practices will be avoided. Such consultants are not only those physicians and psychologists who work for us directly but are also those who do review and adjudication work in the State agencies. Physicians and psychologists who work for us directly as employees or under contract will not work concurrently for a State agency. Physicians and psychologists who do review work for us will not perform consultative examinations for us without our prior approval. In such situations, the physician or psychologist will disassociate himself or herself from further involvement in the case and will not participate in the evaluation, decision, or appeal actions. In addition, neither they, nor any member of their families, will acquire or maintain, either directly or indirectly, any financial interest in a medical partnership, corporation, or similar relationship in which consultative examinations are provided. Sometimes physicians and psychologists who do review work for us will have prior knowledge of a case; for example, when the claimant was a patient. Where this is so, the physician or psychologist will not participate in the review or determination of the case. This does not preclude the physician or psychologist from submitting medical evidence based on treatment or examination of the claimant.

The statute as written, particularly the language "all implications of possible conflict of interest" is very broad and can be interpreted in that manner. See Bergstrad v. Commissioner, 967 F.Supp. 1195 (D. Or 1997) holding that Dr. Pati's testimony at the hearing was a conflict of interest because he had worked for DDS earlier and given a prior opinion as to the claimant's mental impairments.

404.1519q can be used as a basis to disqualify a medical expert in a remand hearing who has also testified at the initial hearing as well. 404.1919q can also be used to disqualify a medical expert that does consultative examinations for DDS from testifying at hearings.

G. Cross-Examination of Vocational Experts

1. The Primer
If you do nothing else in your cross-examination of the Vocational Expert ("VE") you should do the following:
a) have the VE state the DOT (Dictionary of Occupational Titles) numbers of the claimant's past relevant work (as testified to by the VE) and proposed Step 5 jobs that the VE states the claimant can perform, given the ALJ's hypothetical. I guarantee that you would be surprised how many times the VE presents a job whose characteristics and job needs do not fit the ALJ's hypothetical limitations.

b) state each of the claimant's limitations separately as testified to by the claimant AND as submitted by the claimant's treating doctor. Ask the VE whether each of these limitations by themselves would prevent your client from working full-time at the claimant's past relevant work and/or the jobs proposed by the VE. Ask the VE whether each of these limitations would prevent your client from sustaining a full-time job (which is different from working at a part-time job).[21]

Having the VE state the DOT numbers of the occupations that the VE testified meets the ALJ's hypothetical sets up the record for potential reversible error on appeal.

Having the VE testify as to the effect of each of the claimant's limitations of her ability to work has a twofold effect. If a subsequent appellate court finds that 1) the ALJ did not give sufficient reasons for rejecting a doctor's opinion or the claimant's complaints; 2) those limitations were propounded to the VE; and 3) the VE testified that given those limitations the claimant could not do any of the claimant's past relevant work or the jobs proposed by the VE - you have made a complete record for payment of benefits at the Federal Court level of appeal. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996); and see Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 1999) (where the court remanded for further proceedings because the VE had not been given a complete hypothetical with all of the limitations of the claimant).

Second, the ALJ may not include a certain limitation in his hypothetical to the VE, but, later in his written decision, the AlJ may find that the claimant was limited in that regard. At the hearing, if you used that limitation in your hypothetical to the VE and the VE testified that given that limitation, your client could not work, then you are home free. You have a complete record that will support a court order for paid benefits.

2 Quantify the VE's Testimony/Response to the ALJ's Hypothetical
At step five, the burden is on the Administration to prove that given the claimant's age, education, past relevant work and limitations, there are jobs in the national economy that the claimant can perform. The Administration meets this burden usually by having the ALJ propose certain limitations in a hypothetical to the VE and asking the VE if anyone with these limitations could do any work that is available in significant numbers in the national and local economy.

Cross-examination of the VE can yield a gold-mine in terms of appeal. First, make sure that you have the VE describe the jobs in terms of what is actually done on the job. Make sure you understand completely what the requirements of the job are. For example, how much is the use of the claimant's hands required for the job, how much interaction with the public, supervisors and co-workers is necessary for the job?[22] Many times, in testifying to the particulars of a job, the VE will stray from the description in the DOT.[23] If that happens, the VE's testimony may be a basis for eliminating the job as one that the Administration can base its decision on.

3. Stress
Many clients have limitations in the ability to handle stress. As any VE will testify, stress is subjective.[24] VEs will testify that deadlines and production expectations will cause stress. Many will testify that unskilled jobs are less stressful. But how true is that? If you place a highly skilled claimant in an unskilled job, the stress of doing something repetitive day in and day out might be extremely high. Also, VEs regularly testify that jobs such as parking attendant or surveillance system monitor are low stress jobs, because most of the time these employees do not do much. However, upon questioning, the VEs will admit that in peak hours or when the system monitor sees a culprit, the stress levels raise considerably.

Again, advocates are encouraged to thoroughly explore and question the VEs regarding the occupational requirements of the jobs they have proposed, to make sure that they actually fit the hypothetical proposed by the ALJ. At times, after intense cross-examination, VEs will admit that the hypothetical claimant could do the job for a little while, but probably could not keep it over time. This is particularly true for claimants who have occasional bad days, whether from mental or physical problems. In this case, your cross-examination has paid its dividend.

4. Transferable Skills

Transferable skills come into play in two situations: 1) where there is a question under the grids for claimants who are fifty and over; and 2) where the VE responds to the ALJ's hypothetical and proposes jobs which are skilled or semi-skilled. 20 C.F.R. Part 404, Subpart P, Appendix 2 ("the grids"). In that case, the claimant must have acquired skills in his past relevant work that can be transferred to the proposed jobs. That requirement is contained in the standard ALJ's introduction to a hypothetical: "considering the claimant's age, education and past relevant work, consider the following hypothetical..."

a. The Difference Between Acquired Skills and Transferable Skills.
Acquired skills are skills that the claimant learned on the job. Transferable skills are acquired skills that the claimant can take and use at other jobs, given her impairments. In other words, an impairment can effectively invalidate an acquired skill making it non-transferable. For example, if you have acquired a skill using your hands, and you have been inflicted with severe arthritis that cripples your use of the hands, your acquired skills involving your hands are non-transferable.
b. Skills and Traits
SSR 82-41 provides:
The regulations definition of semiskilled work in regulations sections 404.1568(b) and 416.968(b) states that semiskilled jobs "may require alertness and close attention ... coordination and dexterity ... as when hands or feet must be moved quickly to do repetitive tasks." These descriptive terms are not intended, however, to illustrate types of skills, in and of themselves. The terms describe worker traits (aptitudes or abilities) rather than acquired work skills.


Skills refer to experience and demonstrated proficiency with work activities in particular tasks or jobs. In evaluating the skill level of PRW or potential occupations, work activities are the determining factors.

Worker traits to be relevant must have been used in connection with a work activity. Thus, in the regulations, the trait of alertness is connected with the work activities of close attention to watching machine processes, inspecting, testing, tending or guarding; and the traits of coordination and dexterity with the use of hands or feet for the rapid performance of repetitive work tasks. It is the acquired capacity to perform the work activities with facility (rather than the traits themselves) that gives rise to potentially transferable skills.

VEs mistake traits for skills. For instance people skills learned at a job such as cashiering are probably more traits than skills. If the same "skills" were learned as a salesperson, the people skill would then probably qualify as a skill.
Further, you cannot transfer skills from a job with a lower specific vocational preparation (SVP) to a higher SVP. Besides asking for DOT numbers from the VE, ask for SVP numbers and the general reasoning level, as some jobs which may have a low SVP have a higher general reasoning level requirement, making it doubtful that they are unskilled jobs or jobs that would accomodate people who are semi-illiterate.

5. Sit-Stand Option
ALJs at times add the sit/stand option to their hypotheticals. The option can be measured at-will or it can for a specific period of time, as in every thirty minutes.
For the latter, a sit/stand option that can only be used every thirty minutes or any other period of time is not realistic given the nature of pain. Usually claimants who have to alternate sitting and standing do so whenever the pain in their bodies dictates the need to change positions. This need is not like clockwork and, in fact, you can question VEs about the nature of pain on the job and how the effects of pain are unpredictable.

As far as alternating sitting and standing, many claimants who have this need do not suddenly jump up and stand or change to a sitting position in an instant. They move slowly and have to stop what they are doing to accomplish the change in position. Many VEs will propose the position of parking lot ticket taker as a job with a sit/stand option. This job can be defeated by the following questions:

Advocate: Isn't it true that parking lot attendants have periods of time when there is not much traffic?
VE: True.
Advocate: And other periods of time where the cars are lined up waiting to pay?
VE: Correct.
Advocate: And in the times that the cars are lined up, isn't it true that the attendant must work continuously without any breaks to keep up with the flow?
VE: Yes.
Advocate: As a VE can I assume that you are experienced with workers who suffer from pain on the job, correct?
VE: Yes.
Advocate: And when someone has the need for sit/stand option, there are time when they need to get up and can't keep working at the position they were in, true?
VE: Yes.
Advocate: And when this happens, depending upon the person, because they are in extreme pain they will move slowly to change position, correct?
VE: It depends on the person, I guess.
Advocate: And when they move from sitting to standing or vice versa, they have to stop what they are doing and then continue that activity from a different position, correct?
VE: It seems so.
Advocate: So if they have to move from sitting to standing and they have to stop what they are doing, couldn't this affect their ability to keep a parking attendant job?
VE: It depends on how long they stop working and how often it happens.
Advocate: If they had to stop working once an hour for five minutes each hour, for a total of 40 extra minutes per day, could they keep the job of parking attendant?
VE: That depends upon the lot, some lots would tolerate it, and others would not.
You have now established that some jobs would not work out and the numbers that the VE has given the Administration are now suspect, giving your reversible error.

6. Composite Jobs
VEs sometimes like to take a job that is a composite job, made up of a few different jobs, and classify the job as the lightest duty job of the bunch For example, if someone works in a deli working as a retail clerk and packing and lifting boxes of meat, the VE cannot classify the job as light based solely upon retail sales part of the job OR classify the entire job as a few different jobs. See Valencia v. Heckler, 751 F.2d 1082, 1087 (9th Cir. 1985).

H. Closing Remarks
Closing remarks are usually not helpful to the client. By this time the ALJ has made up her mind and anything you say from this point on "will be used against you in a court of law." In other words, if you need to give a closing statement, that means that you will probably lose, and if so, you do not want to reveal the theory of your case. The ALJ can use your closing to solidify his reasoning for his written decision.
Thus, you have to be desperate to use a closing decision. Consider its use wisely.

I. Submitting Evidence Post Hearing
ALJs hate it when you submit evidence post hearing. I have at times submitted evidence from a treating doctor after I had the treating doctor read the ALJ's written decision so I can explain why the ALJ's medical conclusions were not valid.
That's it for now folks. I hope this guide to Social Security disability and SSI advocacy will help win more cases for your clients.[25]

Alan Graf
1020 SW Taylor St., Suite 230
Portland, Oregon 97205
(503) 452-2375

[1] The following text is revised and updated from the Oregon Bar's "Perfecting Your Social Security Disability Claim," 2002 ed.

[2] And the ALJs!

[3] Your immigration status can effect your eligibility. The amount of resources and your income can effect your eligibility for Title XVI benefits (Supplemental Security Income-SSI). In other words, there are exceptions to the "everyone is covered" principle.

[4] As the claimant's advocate, you can speed up the Appeal Council process by submitting a minimalist appeal. You can submit form HA-520 and simply state on it that "the ALJ's decision contains legal error and is not based upon substantial evidence." More than this will inevitably slow the appeals process down. Claimants are not required to raise and discuss specific issues before the Appeals Council and do not waive any rights if they do not submit written arguments in support of their appeal. See Sims v. Apfel, 120 S.Ct. 2080 (2000). My position is that the minimalist route is the best route to take, as the Appeals Council normally does not appear to seriously consider written argument, and when it reverses decisions, it does so on its own volition without any prodding (other than in the case of a request to reopen a dismissal of a case).

[5] Leading questions can be a real bone of contention in a hearing depending upon the severity of the leading and the individual ALJ. Within the informal context of the hearing, leading questions are allowed. However, the more leading you do, the less weight the ALJ and appellate courts will likely assign to your client's testimony. With mentally ill clients, clients having borderline IQs, uneducated clients and very nervous clients (which most of them are), a certain amount of leading is necessary because they do not have the ability at the day of reckoning to recall, state and present the necessary facts. At those times you need to be an active advocate to assist your client in giving their very best and complete presentation.

[6] These questions and your client's responses serve as a basis for your client's testimony at the hearing.

[7] This is more the exception than the rule. In fact it appears to be tabulated at about one in one thousand claimants who are committing welfare fraud within the Social Security System. Nonetheless, some bureaucrats appear to believe that forming social security fraud squads will be worth the cost in money and fear created in legitimate applicants so that they can catch the small number of "fakers."

[8] See Willis v. Callahan, 979 F.Supp. 1299 (D.Or. 1997) (a claimant only has to prove that they cannot work full time in order to qualify for social security benefits unless their past relevant work was part-time and it reached the level of substantial gainful activity).

[9] You usually do not want to hear your client answer "I think I would get bored doing small products assembly." Being "bored" by itself is not a recognized medically determinable impairment. However, keep in mind that some mentally ill people by nature cannot properly express exactly what is wrong with them. Do not initially accept an answer such as boredom. Through focused questioning explore why your client is not able to fulfill the expectations, duties and responsibilities inherent in performing and sustaining full time work.

[10] I recommend giving the client a copy of the form they initially filled out for DDS to review and decide if any of their answers and/or limitations have changed since that time. If so, have them explain the differences to you prior to the hearing.

[11] Again, I am not implying that you should tell someone what to write. But without guidance you might get an opinion from a friend of the claimant stating "in my opinion my friend is disabled," which is worthless. However, a letter stating that from personal observations the writer has seen the claimant have problems picking up objects, or the writer has seen the claimant sleeping two hours during the day, or the writer has seen the claimant wincing and moaning as they pick up a jar of pickles-can be extremely helpful in developing the record. With diseases like chronic fatigue syndrome and fibromyalgia these third hand observations are particularly helpful in establishing the severity of symptoms. See SSR 99-2p.

[12] Regulations promulgated by the Commissioner under the mental listings 12.00D2 spell out the need for "longitudinal type evidence in assessing the severity of a claimant's complaints." The Commissioner explains that

An individual's level of functioning may vary considerably over time, so that functioning at a specific time-regardless of whether it is adequate or poor-may not be an accurate indicator of the overall severity of the individual's impairment. Federal Register: 8/21/2000, Vol. 65, Number 162, FR 50745. See also www.access.gpo.gov for web access.

[13] See Hallex I-1-3-3, (the ALJ must "avoid initiating inquiries regarding suspected criminal violations which are not relevant to the merits of the case"); and see 5 U.S.C. § 552.a (the Privacy Act); and see 20 C.F.R. § 401.140, (where there is "clearly unwarranted invasion of personal privacy")

[14] Opinions from treating sources are usually secured in written form. If you can afford the services of a live doctor for a hearing, I recommend that in most cases, especially those borderline cases or with tough ALJs, have the doctor testify at the hearing.

[15] I still have bad dreams about the mother who testified at a hearing that her daughter exaggerated her testimony. So much for the sanctity of motherhood!

[16] The notes from counseling sessions may have descriptions of what activities the claimant has troubles with.

[17] There is one ME that appears regularly at the Portland OHA branch that has a reputation for rating everyone as having moderate limitations. I remember one client who had undergone shock treatment on a regular basis because no other therapy or medication would work. When the ME testified that the claimant had moderate limitations, even the ALJ wanted to know what it would take for the ME to testify that the claimant had marked mental health limitations-a lobotomy?

[18] In Holohan v. Massanari the Ninth Circuit found that the opinion of a reviewing physician who merely checked boxes without giving supporting explanations was insufficient to outweigh the opinion of a treating physician who cared for Holohan over a period of time and who provided an opinion supported by explanation and treatment records. Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir 2001).

[19] You might as well throw this one back at them - no objective evidence?

[20] I am very careful about agreeing to have the ME question my claimant, unless I sense that the ME is doing so to support a forthcoming medical opinion. I usually agree with the caveat that if it turns into a cross-examination, I have the right to object and ask for the termination of the questioning.

[21] The limitations stated to the VE should accurately reflect the record - either the complaints of the claimant or the opinions of the doctors of record. Don't forget to pose obvious hypotheticals such as two or more days absence a month. I just received a remand from the Ninth Circuit because the VE at the hearing had not been asked if my client could work if she were absent from work two days per month. No limitation is so obviously limiting that you don't need to propose it to a VE.

[22] With clients that have problems with social functioning, the ALJ's will regularly posit hypotheticals that limit the claimant to jobs that require little team work. However, on cross, you should be able to elicit from a VE the fact that many unskilled jobs are done in areas with workers crowded together for maximum efficiency. If the VE has testified that the job can be performed with a moderate limit in concentration, that implies that a non-disabled worker will be able to perform the job without requiring all of their concentration to do the job. Thus, they will probably be prone to chit-chatting with their co-workers. Placing a worker that has limitations in social functioning in an environment where there is a lot of social chatter may set off some clients and cause them to decompensate.

[23]An ALJ may rely upon VE testimony as long as it is consistent with the DOT unless there is persuasive evidence in the record to support the contradiction. See Johnson v. Shalala, 60 F.3d 1428 (9th Cir. 1995).

[24] See Lancelotta v. Secretary of HHS, 806 F.2d 284 (1st Cir. 1986); See also SSR 85-15 for stress as experienced by mentally impaired individuals.

[25]Special thanks to my staff for their assistance with this material.

 

 

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