1 ebook are you likely to qualify

ARE YOU LIKELY TO

QUALIFY FOR SOCIAL

SECURITY DISABILITY

BENEFITS?

Daniel A. Bridgman

Attorney at Law

BRIDGMAN LAW OFFICES

(704) 815-6055

www.charlottedisability.com

Charlotte, NC

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Are You Likely to Qualify forSocial Security Disability Benefits?

Copyright © 2015 James Publishing

All rights reserved

www.JamesPublishing.com (866)-72-JAMES

The content in this book was originally written by one of James Pub-lishing’s authors for use by Social Security disability lawyers. James Pub-lishing’s attorney-editors have revised the content so that it will also be helpful to disability claimants. The content has been reviewed by and is provided to you courtesy of Social Security disability attorney Daniel A. Bridgman .

The publisher does not provide legal services, but attorney Daniel A. Bridgman does. If you need legal advice specific to your Social Security dis-ability claim, contact Daniel A. Bridgman or another Social Security disability attorney.

The publisher and Daniel A. Bridgman disclaim any warranties of merchantability or fitness for a particular purpose.

If you have any suggestions that will help improve future editions,please email them to [email protected] or send them to:

James PublishingDisability editor3505 Cadillac Ave., Suite P-101Costa Mesa, CA 92626

1st Edition, 9/13


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ABOUT Daniel A. Bridgman .

Daniel A. Bridgman worked as a Disability Examiner before he went to law school, so he has first-hand experience with evaluations of Social Security disability claims. He worked in Raleigh for North Carolina Disability Determination Services, where he put together claimants’ disability files, gathered medical evidence, and assisted the agency in deciding whether to accept or deny a claim.

Mr. Bridgman then attended Wake Forest University School of Law in Winston-Salem. Upon graduation he worked for a law firm that specialized in helping claimants win their Social Security disability claims, and then he left to form Bridgman Law Offices, where he focuses exclusively on Social Security. He and his wife now reside in Charlotte with their daughter and chocolate Labrador retriever.

Mr. Bridgman’s insider experience and management and systems training have helped him and his team to assemble an effective, organized, and attentive approach to taking your claim from start-to-finish through the disability determination process.

When you bring your Social Security disability claim to Bridgman Law Offices, you will receive personal attorney attention every step of the way.

We handle Social Security disability (SSDI), Supplemental Security Income (SSI), and children’s Supplemental Security Income cases in both North Carolina and South Carolina.


4 Are You Likely to Qualify for Social Security Disability Benefits?

SUMMARY TABLE OF CONTENTS

Chapter 1 How SSA Determines Disability

Chapter 2 Appealing a Denial

Chapter 3 Frequently Asked Questions

Chapter 4 First Meeting with Your Attorney


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DETAILED CONTENTS

Chapter 1 How SSA Determines Disability§1:01 “Disabled”— A Term of Art§1:02 Statutory Definit ion§1:03 A Non-adversarial Administrat ive System§1:04 SSA: A Bureaucracy§1:05 Determining Disability Under the Regulat ions and

Rulings§1:06 Diagram: Disability Decision and Sequential

Evaluation Process§1:07 Sequential Evaluation Process — Overview§1:08 Step 1: Substantial Gainful Act ivity§1:09 Step 2: The Severity Step§1:10 Duration Requirement§1:11 Step 3: List ing of Impairments§1:12 Step 4: Past Relevant Work§1:13 Step 5: Other Work§1:14 Summary and Exceptions

Chapter 2 Appealing a Denial§2:01 Appeal Process§2:02 Init ial and Reconsiderat ion Determinations§2:03 Hearing§2:04 Differences Between State Agency Determinations

and Hearing Decisions§2:05 Charts: State Agency and ALJ Disability Decisions

Compared§2:06 Appeals Council Review§2:07 Federal Court



§2:08 Diagram: The Appeal Process and Outcomes§2:09 Diagram: How Long Does Appeal Process Take?§2:10 Good Cause for Late Filing

Chapter 3 Frequently Asked Questions§3:01 Common Questions About Applying for Disability

Benefits§3:02 Form: Letter to Prospective Client§3:03 Form: Claimant Quest ionnaire§3:04 Form: Claimant Psychiatric Quest ionnaire

Chapter 4 First Meeting with Your Attorney§4:01 Init ial Interview§4:02 Your Attorney Will Analyze Your Answers§4:03 Form: Attorney’s Interview Questions§4:04 Form: Attorney’s Analysis of Your Case§4:05 Onset Date of Your Disability§4:06 Unsuccessful Work Attempts§4:07 Prior Applicat ions§4:08 Receipt of Unemployment Compensation Benefits§4:09 Educating You About Disability Law§4:10 Putt ing You at Ease About Hearing Process§4:11 Identifying Your Strengths and Weaknesses as a

Witness§4:12 Identifying Other Potential Witnesses§4:13 Keeping a Daily Diary§4:14 Things for Your Attorney to Do§4:15 Form: Attorney’s to-Do Checklist§4:16 Form: Monthly Headache Diary


“As you can see, determining disability involves a mult i-step reasoningprocess. The one-step ‘I can't work’ sort of argument won't get you very far.Common sense can be applied only where there isn't a regulat ion or SocialSecurity Ruling to the contrary.” §1:14

Chapter 1

HOW SSA DETERMINESDISABILITY

§1:01 “Disabled”— A Term of Art§1:02 Statutory Definit ion§1:03 A Non-Adversarial Administrat ive System§1:04 SSA: A Bureaucracy§1:05 Determining Disability Under the Regulat ions and

Rulings§1:06 Diagram: Disability Decision and Sequential

Evaluation Process§1:07 Sequential Evaluation Process—Overview§1:08 Step 1: Substantial Gainful Act ivity§1:09 Step 2: The Severity Step§1:10 Duration Requirement§1:11 Step 3: List ing of Impairments§1:12 Step 4: Past Relevant Work§1:13 Step 5: Other Work§1:14 Summary and Exceptions

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§1:01 “Disabled”—A Term of Art

You cannot always rely on common sense to tell you who is andwho is not disabled under Social Security law. Here are some surprisingexamples:

Example: Lawyer• He is 35 years old with 10 years of trial experience.• He is not working, but he is looking for a job.• He lost his left foot in a car accident a year ago.

Because of stump complications, he is unable to use a prostheticdevice to walk one block at a reasonable pace, though he uses it to walkshorter distances, e.g., around an office or around his apartment. Whenhe goes longer distances, he rides a motorized scooter.

He is disabled.

Example: Bookkeeper• He has a college education.• He is a quadriplegic with only limited use of his right hand and

arm and no use whatsoever of his legs and left arm.• He uses an arm brace to write.• He works a few hours per day as a bookkeeper and earns, after

deductions for expenses related to his impairment, about $1,050per month on average.

Because of his earnings he is not disabled.

Example: Construction worker• He is 48 years old.• He has done heavy unskilled construction work since age 16.• He has a fourth grade education and is capable of reading only

rudimentary things like inventory lists and simple instructions.• He has a “low normal” I.Q.• He is limited to sedentary work because of a heart condition.

He is not disabled unless he has some additional limitations.

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How SSA Determines Disability 9

Example: Machine operator• He is 38 years old.• He has done medium exertion level unskilled factory work, oper-

ating a machine since he graduated from high school.• A cardiovascular impairment limits him to sedentary work, and

a permanent injury of the right hand limits him to such work notrequiring bimanual dexterity.

He is probably disabled.

Example: Truck driver• He is 61 years old.• He worked as a truck driver all his life except that 10 years ago

during a downturn in the trucking industry, he worked for 1-1/2years at a sedentary office job which he got with the help of hisbrother-in-law.

• He is limited to sedentary work because of a pulmonaryimpairment.

He is not disabled because he is still capable of doing the office job.

Example: Packer• He is 50 years old.• He has a high school education.• He has done unskilled light exertion factory work as a packer for

the past 30 years.• He had a heart attack on January 1 and, after being off work for

eight months, he recovered after an angioplasty. His cardiologistgave him a clean bill of health and was ready to send him back towork when he broke his leg in a fall unrelated to his heart condi-tion. In a cast and unable to stand and walk as required by hisjob, he could not return to work until February. He was off worka total of 13 months.

He is not disabled for the time he was off work. Unrelated impair-ments may not be combined to meet the requirement that a claimant beunable to work for 12 months.

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Example: Housewife• She is 55 years old.• She has an eleventh grade education.• She has not worked in the past 15 years. Before that she was a

secretary.• She has a back problem diagnosed as status post laminectomy.• She is limited to maximum lifting of 50 lbs. with frequent lifting

of 25 lbs., is capable of frequent bending, stooping, etc., and hasno limitation for standing or walking.

She is disabled for the SSI program as long as she meets the incomeand asset limitations for that program. (She is not eligible for SocialSecurity disability benefits because she has not worked for so long.)

§1:02 Statutory Def init ion

The Social Security Act defines “disability” as an inability:

“to engage in any substantial gainful activity by reason of anymedically determinable physical or mental impairment whichcan be expected to result in death or which has lasted or can beexpected to last for a continuous period of not less than 12months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A).

This definition applies to both the regular Social Security disabilityprogram and the SSI disability program.

To be disabled your impairments must be so severe that you can-not do:

• Your previous work; or• Any other kind of substantial gainful work that exists in the

national economy, considering your age, education, and workexperience.

“Work which exists in the national economy” means jobs that existsin significant numbers either in the region where you live or in severalregions of the country.

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If you are capable of substantial gainful work, you are not disabledeven if no work is available in the immediate area in which you live, orno job vacancy exists for you, or you would not be hired even if youapplied for work.

§1:03 A Non-Adversarial Administrat ive System

The Social Security disability system is “non-adversarial.” Thismeans that there is no prosecuting attorney representing the govern-ment and arguing against you. Only if your case is appealed to federalcourt will a lawyer representing the government become involved.

If your case requires a hearing, it will be held before an administra-tive law judge (ALJ). At the hearing, you will have a chance to tell yourstory to the judge. The judge will listen to your evidence and decide ifyou are disabled. The ALJ is neutral and most ALJs are fair.

This system is probably better at determining who is and is not dis-abled than any alternative. The judges develop expertise in dealing withcomplicated issues and generally make accurate decisions.

§1:04 SSA: A Bureaucracy

The Social Security Administration is a huge government bureau-cracy. Like most government bureaucracies, it suffers from rigid rule-following, whether or not the rule makes any sense. This may causeboth you and your lawyer plenty of aggravation. In dealing with theSSA you will find that it is best to be firm and persistent but neverobnoxious.

SizeA fundamental problem is the sheer size of the agency, which has

approximately 57,000 employees. In addition to these federal employ-ees, there are more than 15,000 state agency employees nationwideinvolved in the disability determination process. The SSA does notmake the initial medical determination of whether you are disabled.That decision is outsourced to a state agency.

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As a consequence of the size of the system, it can be difficult for youand even for your lawyer to figure out whom to contact about your par-ticular problem and then to determine how to contact them, whether byphone, fax, mail, or e-mail.

Program ComplexityThe problem of SSA’s size is compounded by the complexity of its

programs, the most complicated of which are the two disability pro-grams, Social Security disability and SSI. When there are programchanges, it is a huge task to ensure that everyone within SSA who needsto know gets the information, and often they do not. Sometimes it willbe up to your attorney to educate SSA employees about policy changes.

To take just one example of problems created by complexity, con-sider the Social Security Administration’s nationwide toll-free tele-phone number, 1-800-772-1213 (which SSA writes as 1-800-SSA-1213). Intheory, the toll-free number is staffed by knowledgeable SSA employeescapable of answering a wide variety of questions, including questionsabout entitlement to disability benefits. However, this is not the reality.One test showed 25 percent wrong answers to questions involving SSI,by far the most complicated of SSA’s programs. The toll-free number, ifyou can get past the busy signals and the recorded messages, is mostuseful for information about the retirement program, not for questionsthat you might have about SSI.

SSA, like all bureaucracies, attempts to make complex decisions amatter of routine; however, the more complicated the decision, the lesseffective this is. It does not work well at all for disability determinationsbecause the medical and vocational issues tend to be complicated andbecause state agencies are not equipped to assess the actual impact of amedical impairment on a particular claimant, who is never seen in per-son. State agency disability determinations tend to be inadequate, andmany people within SSA remain almost blissfully unaware of stateagency decision shortcomings. For example, SSA has produced studiesthat repeatedly conclude that state agency determinations are correctmore than 93% of the time. Yet, such studies fail to explain why ALJsconsistently find disabled more than half the claimants who comebefore them. These studies have led many state agency employees andsome SSA employees to believe (incorrectly, of course) that ALJs issuemostly wrong decisions.

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Office of Disabil ity Adjudication and ReviewOnce your claim for Social Security Disability benefits reaches the

hearing level, it will be handled by SSA’s Office of Disability Adjudica-tion and Review (ODAR). ODAR includes about 150 hearing officesscattered around the country. Dealing with the ODAR is considerablyless frustrating than dealing with other departments of the SSA or withthe state agency. In all, ODAR has approximately 10,000 employees,including about 1,400 administrative law judges and more than 50administrative appeals judges.

§1:05 Determining Disabil ity Under theRegulat ions and Rul ings

Social Security regulations provide a five-step sequential evaluationprocess for determining disability.

In addition, your impairment must be expected to result in death orhave lasted or be expected to last at least 12 months. This is called theduration requirement. It is a requirement that, although not part of thesequential evaluation process, logically could be inserted into thisprocess following step 2, the severity step. Thus, it is included in the fol-lowing outline of the disability determination process.

(Text continued on page 15.)

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§1:06 Diagram: Disabil ity Decision and Sequent ialEvaluat ion Process

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§1:07 Sequent ial Evaluat ion Process—Overview

Under the five-step sequential disability evaluation process , youmust prove the following in order to be found disabled:

1. You are not engaging in “substantial gainful activity” (SGA); and2. You have a “severe” impairment; and3. Your impairment meets or “equals” one of the impairments

described in the Social Security regulations known as the “Listingof Impairments”; or

4. Considering your “residual functional capacity” (RFC), that is,what you can still do even with your impairments, you areunable to do “past relevant work” (PRW); and

5. Other work within your RFC that you can do (considering yourage, education and work experience) does not exist in the nation-al economy in significant numbers.

Watch out for the terms identified by quotation marks above andthe initials that go with some of them. They have precise meaningsunder Social Security law that are not necessarily the meanings youwould expect.

If you fail any step other than step 3, the process is terminated andyou will be found not disabled. In most cases that are denied, the prob-lems arise at steps 4 and 5 of the sequential evaluation process.

§1:08 Step 1: Substant ial Gainful Act ivity

If you are working and performing “substantial gainful activity”(SGA), no matter how impaired you are, you cannot be found disabled.This is the reason that the bookkeeper in §1:01 is not disabled.

Even illegal activity may be substantial gainful activity.

Substantial WorkWork must be both “substantial” and “gainful.” Substantial work

activity requires significant physical or mental activities. Work may notbe substantial if you are unable to do ordinary or simple tasks satisfac-torily without more supervision or assistance than is usually given other

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people doing similar work or if you are doing work that involves mini-mal duties that make little or no demands on you and that is of little orno use to an employer or self-employed business. But even shelteredwork may be substantial.

Gainful WorkWork is gainful if it is the kind of work usually done for pay or prof-

it, whether or not you make a profit. Nevertheless, if you are an employ-ee, whether work is “gainful” is usually determined by looking only atyour earnings to see if they are above the SGA level, a monthly amountestablished every year by the SSA.

If you are self-employed or work for relatives, the SSA is likely toscrutinize your income and your work’s value to the business carefully,even if you are working at a loss (as so many unimpaired self-employedpeople do from time to time).

SGA LevelThe SGA level, which was $300 per month during all of the 1980s

and $500 per month from 1990 until July 1999, when it was raised to$700, is becoming considerably more generous than it used to bebecause of cost-of-living increases that have been applied beginningwith the year 2001. For example, the 2013 amount is $1040 ($1740 for cer-tain blind individuals).

You can find the SGA amount for the current year on the Internet atwww.ssa.gov/cola.

Impairment-Related Work ExpensesWhether you are employed by someone else or are self-employed,

to arrive at countable income, SSA allows deduction from earnings forwhat it calls “impairment-related work expenses.” These are usuallypayments for drugs or medical treatment for your disabling impairmentbut may also include payments for some transportation costs, vehiclemodification, attendant care services, residential modification, etc.

If you are earning an income and the SSA claims you are engaged insubstantial gainful activity, your attorney will need to carefully reviewSSA’s impairment-related work expense rules because some expensesyou wouldn’t expect are included (such as payment for treatment that

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you would need to pay whether you work or not) and some expensesthat you might expect to qualify are excluded (such as payment forhealth insurance).

§1:09 Step 2: The Severity Step

At step 2 of the sequential evaluation process, the SSA considerswhether your impairments are “severe.” This step was intended toweed out frivolous cases in which a claimant either has: (1) no medical-ly determinable impairments; or (2) slight medically determinableimpairments that impose only minor limitations on ability to work. Vir-tually any reduction in your residual functional capacity (what you canstill do even with your impairments) satisfies this step.

SSA is supposed to consider the combined effect of all your impair-ments, even minor ones, in determining if your overall condition meetsthe requirement of being “severe.” Even your subjective symptoms, aslong as they arise from a medically determinable impairment, must beconsidered in assessing whether an impairment, or group of impair-ments, reduces your ability to do basic work activity. Close cases are tobe decided in favor of finding your impairment to be severe.

On the other hand, no symptom or combination of symptoms can bethe basis for a finding of disability, no matter how genuine your com-plaints may appear to be, unless medical signs and laboratory findingsdemonstrate that you have a medically determinable physical or mentalimpairment. In other words, you must have an anatomical, physiologi-cal, or psychological abnormality that can be established by medicallyacceptable clinical and laboratory diagnostic techniques.

If you don’t have a medically determinable impairment, you will befound not disabled at step 2 of the sequential evaluation process. Nev-ertheless, as a rule, if a doctor has enough information to make a legiti-mate diagnosis, you have a medically determinable impairment. Evenwhen doctors disagree about your diagnosis, if medical signs or labora-tory findings show any abnormality, you have a medically determinableimpairment.

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§1:10 Durat ion Requirement

Unless an impairment is expected to result in death, it must havelasted or be expected to last for a continuous period of 12 months.

Your impairment need not be severe for the full 12-month period ifyou have an impairment that waxes and wanes or has short periods ofremission followed by active periods sufficient to prevent you fromengaging in substantial gainful activity on a sustained basis.

You may not tack together unrelated severe impairments to meetthe duration requirement. This is the reason that the packer in §1:01 isnot disabled. It is hard to find a public policy reason for this harsh result.

Claimants who are denied benefits based on the duration require-ment usually have not yet met the requirement and have the type ofimpairment that is likely to improve within 12 months. If you have suchan impairment, the initial decision on your case may be delayed to seeif your condition improves.

Once you meet the 12-month duration requirement, you may askfor a finding of a closed period of disability if your condition subse-quently improves and you are able to return to work, in which case youwill receive benefits for a temporary period.

§1:11 Step 3: List ing of Impairments

In order to be found disabled at step 3 of the sequential evaluationprocess, your medical signs, findings, and symptoms must meet or“medically equal” one of the sets of medical signs, findings and symp-toms found in the Listing of Impairments. The Listing of Impairments isa set of medical criteria for disability found in Social Security disabilityregulations.

If you are found disabled at step 3, the analysis stops and you areentitled to benefits. The SSA makes no further inquiry into your abilityto do past work or other work. This is the reason that the lawyer in §1:01is disabled although he can still practice law. His impairment meets asection of the Listings that deals with amputation of one or both feet.

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You disability attorney will want to take an especially hard look atthe Listings when you can still perform past relevant work. See §1:12. Ifyour impairment meets or equals one of the impairments in the Listings,your ability to perform past work is irrelevant.

Your attorney may be able to argue that your impairments are med-ically equivalent to an impairment in the Listing of Impairments. Thisargument works in four situations:

1. You do not have one of the essential findings stated in the List-ings for your particular impairment but you have other findings;

2. You have all the essential findings but one or more of the find-ings is not quite severe enough and you have other findings;

3. Your impairment is not described in the Listings but it may be assevere as an analogous impairment that appears in the Listings;or

4. You have a combination of impairments, none of which meet theListings but the cumulative total of them could still equal theListings.

Before an ALJ can find that your impairment medically equals aListed Impairment, he or she must receive the opinion of a medicalexpert hired by SSA.

If you cannot be found disabled at step 3, the inquiry proceeds tostep 4.

§1:12 Step 4: Past Relevant Work

At step 4, you have to prove that you are incapable of doing any“past relevant work.” To qualify as past relevant work:

1. The job must have been performed within:a. 15 years before your claim is decided; orb. if your insured status has lapsed because it has been a while

since you last worked, 15 years prior to the date lastinsured.

2. The job must have been “substantial gainful activity.” That is,

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a. the job must have involved doing significant physical ormental activities; and

b. it must have been done at the SGA level. 3. The job must have lasted long enough for you to develop the

facility needed for average performance.

A job qualifies as past relevant work even if the job was only part-time, as long as it was substantial gainful activity. Thus, you have toidentify your easiest full or part time past relevant job and then figureout why you cannot still do it. If you had an easy job in the past 15 yearsthat you can still do, you will not be disabled like the truck driver in§1:01, unless your condition meets or medically equals one of theimpairments in the Listing of Impairments.

You must prove that you cannot do a past relevant job even if thatjob no longer exists in the economy, an SSA position that has beenupheld by the U.S. Supreme Court.

In addition, if you retain the capacity to do a past relevant job as itis ordinarily done, you will be found not disabled even though youractual past job required greater exertion and you are now unable to dothat particular job. Unfortunately, the “job as it is ordinarily done” ruleis not applied the other way to your benefit. If your past work was eas-ier than the way the job is ordinarily done, even if your employeraccommodated your disability under the Americans with DisabilitiesAct, SSA will examine the actual job requirements as you performedthem in determining whether you can perform past relevant work.

§1:13 Step 5: Other Work

Once you have proven that you cannot perform past relevant work,you move on to the most complicated step—determining whether youcan make an adjustment to other work that exists in significant numbersin the national economy, considering your remaining work capacity,age, education, and work experience. SSA has provided an importanttool for determining whether you are or are not disabled because ofmedical impairments and vocational factors: the Medical-VocationalGuidelines, popularly known as the “grids.” The grids provide that theolder you are, the easier it is to be found disabled. Thus, the housewifein §1:01 is found disabled despite the remaining physical capacity to do

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most jobs in the economy (sedentary, light, and medium work) becauseof her age (55), education (less than a high school graduate), and workexperience (none in the past 15 years).

§1:14 Summary and Except ions

As you can see, determining disability involves a multi-step reason-ing process. The one-step “I can’t work” sort of argument won’t get youvery far. Common sense can be applied only where there isn’t a regula-tion or Social Security Ruling to the contrary.

Two Main Routes to Disabil ity FindingThe sequential evaluation process provides two main routes for a

finding of disability. One route involves a purely medical determinationthat your impairment meets or medically equals an impairmentdescribed in the Listing of Impairments. The other route to a disabilityfinding involves assessing a combination of medical and vocational fac-tors that culminates at step 5 of the sequential evaluation process.

Three Special Medical-Vocational ProfilesIn addition, there are three other ways to be found disabled without

completing the standard five-step sequential evaluation process. If youfit one of three special medical-vocational profiles, you will be founddisabled without proceeding to step five and without consulting theMedical-Vocational Guidelines. Indeed, for one of the three profiles, it isnot even necessary to assess residual functional capacity. A claimantwho fits this profile is found disabled by simply showing that he or shehas a severe impairment. This profile provides that a claimant is dis-abled who:

• Has a severe, medically determinable impairment;• Is age 55 or older;• Has an 11th grade education or less; and• Has no past relevant work experience.

Another profile, known as the “worn-out worker,” describes aclaimant who:

• Has no more than a sixth grade education; • Worked 35 years at arduous unskilled labor; and• Is unable to do the arduous unskilled labor done in the past.

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A claimant may have more formal education than sixth grade andstill be considered to have marginal education if he or she functions atthe marginal educational level.

Even light work if it demands a great deal of stamina or activitysuch as repetitive bending and lifting at a very fast pace may qualify asarduous.

The 35 years of qualified work activity need not be continuous andmay be interspersed with work activity that does not satisfy the “ardu-ous unskilled labor” requirement. Not all prior work need be unskilledif work at higher skill level is isolated, brief, or remote, or if skills are nottransferable. As long as there are 35 years of qualified employment thatthe claimant can no longer perform, the existence of an unskilled job inthe past which the claimant retains the capacity to perform will notmake the worn-out worker rule inapplicable.

The third medical-vocational profile is known as the “lifetime com-mitment” profile. Like the worn-out worker, this claimant is found dis-abled at step 4 with proof of inability to do past relevant work.

A finding of “disabled” will be made for persons who:

• Are not working at SGA level; and• Have a lifetime commitment (30 years or more) to a field of work

that is unskilled, or is skilled or semi-skilled but with no transfer-able skills; and

• Can no longer perform this past work because of a severe impair-ment(s); and

• Are closely approaching retirement age (age 60 or older; and• Have no more than a limited education.

To satisfy the requirement for this profile, the 30 years of lifetimecommitment work does not have to be at one job or for one employerbut rather work in one field of a very similar nature. If the person has ahistory of working 30 years or more in one field of work, the use of thisprofile will not be precluded by the fact that the person also has workexperience in other fields, so long as that work experience in other fieldsis not past relevant work which the person is still able to perform.

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Six Ways to Be Found Not DisabledSocial Security regulations provide six possibilities for a finding of

not disabled. You will not be found disabled if:

• You are working at the SGA level;• You have no medically determinable impairment;• You have an impairment that does not significantly limit your

physical or mental ability to do basic work activities;• Your impairment fails to meet the duration requirement;• You are capable of past relevant work;• You are capable of other work.

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“Although it is the rule at all levels that a d isability decision cannot beinconsistent with the med ical evidence, the state agency decision-makers,who have only the cold file to review, seldom look beyond med ical find ingsto consider a claimant’s actual ability to work.” §2:04

Chapter 2

APPEALING A DENIAL

§2:01 Appeal Process§2:02 Init ial and Reconsiderat ion Determinations§2:03 Hearing§2:04 Differences Between State Agency Determinations

and Hearing Decisions§2:05 Charts: State Agency and ALJ Disability Decisions

Compared§2:06 Appeals Council Review§2:07 Federal Court§2:08 Diagram: The Appeal Process and Outcomes§2:09 Diagram: How Long Does Appeal Process Take?§2:10 Good Cause for Late Filing

§2:01 Appeal Process

A Social Security disability claim can pass through four levels ofadministrative review. They are:

1. The initial determination;2. Reconsideration determination;

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3. Hearing before an administrative law judge; and4. Review by the Appeals Council.

After this, a case may be filed in federal court.

The time limit for all appeals but one is 60 days from the date youreceive a decision. Because there is a strong presumption that decisionsare received five days from the date on the face of the decision, unlessthere is evidence to the contrary, the effective time limit is 65 days fromthe date of the decision.

Take a look at the diagram in §2:08, which shows the percentages ofclaimants approved at various levels of appeal in 2011. It shows thatmore than one million claimants were found disabled on their initialapplications (34% of 3,295,806). Thus, more than two million claimantswere denied, but fewer than half that number requested reconsidera-tion. Note the low approval percentage on reconsideration (12%), andthat 58% of hearing decisions were favorable (this is around 384,000claimants). Also note that the Appeals Council grants relief to fewerthan 24,000 claimants (remand 21% plus allow 2% of 103,681); this num-ber of claimants is about four times the number of claimants grantedrelief by the federal courts.

§2:02 Init ial and Reconsiderat ion Determinat ions

Although a Social Security disability claim (but not an SSI disabil-ity claim) can be completed on the Internet at http://www.socialsecu-rity.gov/disabilityonline, most claimants initiate their claims by tele-phoning an SSA teleservice center at SSA’s toll-free number,1-800-772-1213.

Teleservice center staff will make an appointment for you with anSSA representative from a local office. If you prefer, an appointment canbe made to go to a local Social Security office to complete an applicationin person, though most claimants make a telephone appointment for anSSA claims representative to call them back at an appointed hour. Dur-ing the appointment, you will be asked basic information, which will beentered into a computer application form that will be printed. If you arehaving a telephone interview, the completed application will be mailedto you for your signature, along with other forms to be completed andsigned. An application for benefits is one of the few forms in a disabili-

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Appealing a Denial 27

ty case that your attorney may not sign on your behalf, unless yourattorney is appointed to do so by a court.

At the initial and reconsideration levels the Social Security Admin-istration does not make medical determinations of disability. Instead,claims are referred to an agency of the state government that has a con-tract with SSA for determining disability. At the state agency, usually amedical doctor and a layperson, called a disability examiner, will eval-uate the claim, though SSA has been experimenting in pilot projectswith having disability examiners make uncomplicated decisions ontheir own. The Social Security Administration then adopts the determi-nations at these two levels.

If you are dissatisfied with the initial determination, you mayappeal.

§2:03 Hearing

Even though you should request a hearing if your application isdenied, a hearing is not always necessary. Sometimes a case is resolvedfavorably by the ALJ or an attorney advisor without a hearing. Afteryou request a hearing, but before a hearing is held, an attorney advisormay review your file, request additional evidence, conduct an informalprehearing conference (usually a telephone call to your attorney), andissue a fully or partially favorable decision.

If a fully favorable attorney advisor decision is issued, the ALJ willdismiss your hearing request. If the attorney advisor issues a partiallyfavorable decision, the ALJ will hold a hearing unless you agree in writ-ing to dismiss your hearing request.

The ALJ can also issue a decision without holding a hearing. But theALJ has the authority to issue only a fully favorable decision without hold-ing a hearing, unless you waive a hearing, which is seldom a good idea.

Your hearing may take place in person before the ALJ or by videoteleconferencing. Your attorney will review with you the advantagesand disadvantages of a video hearing and advise you which is likely tobe a better choice for your situation. If you don’t want to have a videohearing, you have the right to object and the ALJ must reschedule thehearing so that you can appear in person.

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At a hearing before an ALJ, you and your attorney can present evi-dence even though it would not be admissible in court under the rulesof evidence. Vocational or medical experts sometimes testify in personor by video teleconferencing. The hearing is not adversarial in nature.The hearing is recorded and testimony is taken under oath or by affir-mation. After the hearing, the ALJ issues a written decision.

§2:04 Differences Between State AgencyDeterminat ions and Hearing Decisions

There are significant differences between the way disability is eval-uated by the state agencies, which make the initial decisions, and theway ALJs approach the issue. The state agency decision-makers, whohave only the cold file to review, seldom look beyond medical findingsto consider a claimant’s actual ability to work. State agency decision-makers tend to use the Listing of Impairments as the unstated basis fora denial determination, especially for claimants under age 50.

If a younger claimant’s impairment does not meet a Listing, thatclaimant is unlikely to be found disabled by the state agency. Stateagency decision-makers tend to apply written or unwritten formulas forevaluating certain medical impairments, thus treating all claimants withsimilar medical findings the same and concluding that they all have thesame RFC. Most state agency formulas point to a conclusion that aclaimant can at least do a wide range of sedentary work and is thus notdisabled.

ALJs, on the other hand, tend to view medical findings as setting theparameters for a range of possible RFCs, some of which may lead to afinding of disabled. They view their role as evaluating the entire case,including the claimant’s credibility, to determine which possible RFCmost closely describes the capacity of a particular claimant. ALJs findclaimants under age 50 disabled because of inability to perform a widerange of sedentary work much more often than state agency decisionmakers do.

The charts in §2:05 were created in conjunction with a 2010 SocialSecurity Administration Office of the Inspector General (OIG) study ofthe differences between state agency decisions and ALJ decisions forimpairments most frequently denied by state agencies and subsequent-ly allowed by ALJs. Table 1 shows, for example, that during the periodstudied, ALJs found claimants with back impairments disabled 70% of

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the time while the state agency denied 78% of such cases. Look at theentry for claimants under age 50 with back impairments in Table 2. Thestate agency found them not disabled 94% of the time while ALJs foundthem disabled 63% of the time. In the same table, look at the numbersfor diabetes mellitus for claimants under age 50. They were found notdisabled by state agencies 95% of the time while ALJs found them dis-abled 59% of the time.

Table 8, which focuses on impairments with 80% or greater hearinglevel allowance rates, shows that in addition to rare impairments sel-dom seen and various cancers, claimants with the following impair-ments were found disabled by ALJs 80% or more of the time: Parkin-son’s disease, multiple sclerosis, chronic renal failure, and peripheralvascular disease. Note also that the state agency finds disabled the vastmajority of claimants with these impairments.

The Social Security Administration has viewed such differences inresults and approach to decision-making as a problem. It has taken stepsto encourage a unified approach to decision making at all administra-tive levels. However, disparities remain. For example, if a claimant isunder age 50 and has a back problem that does not meet the Listings,that claimant is likely to be denied by the state agency; but if thatclaimant is truly unable to work, the claimant may have a pretty goodchance of winning before an ALJ.

§2:05 Charts: State Agency and ALJ Disabil ityDecisions Compared

Table 1Four Impairments Most Frequently Denied by DDSs and Subsequently

Allowed at the Hearing Level

Impairment Number of DDSDenials

DDS DenialRate

Number ofHearing Level

Allowances

Hearing LevelAllowance Rate

Disorders ofBack 744,602 78% 238,903 70%

Osteoarthrosisand AlliedDisorders

204,652 58% 61,118 70%

DiabetesMellitus 165,411 81% 38,174 67%

Disorders ofMuscle,

Ligament, andFascia

138,905 80% 34,693 65%

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Table 2DDS and Hearing Level Allowances by Age of Claimant

Impairment Age ofClaimant

Number ofDDS

Determinations

Number ofDDS Denials(Denial Rate)

Number ofAppeals(Appeal

Rate)

Number ofHearing Level

Allowances(Allowance

Rate)

Disorders ofBack

Osteoarthrosisand AlliedDisorders

DiabetesMellitus

Disorders ofMuscle,

Ligament, andFascia

Age 50 orOlder 433,677 257,574

(59%)138,617(54%)

110,311(80%)

Under Age50 516,125 487,028

(94%)204,253(42%)

128,592(63%)

Age 50 orOlder 237,566 101,695

(43%)47,511(47%)

37,254(78%)

Under Age50 115,371 102,957

(89%)39,646(39%)

23,864(49%)

Age 50 orOlder 107,771 74,189

(69%)29,310(40%)

22,176(76%)

Under Age50 96,320 91,222

(95%)27,341(30%)

15,998(59%)

Age 50 orOlder 75,293 46,488

(62%)21,941(44%)

16,708(76%)

Under Age50 97,271 92,417

(95%)31,405(34%)

17,985(57%)


ImpairmentNumber of DDSDeterminations

DDS DenialRate


Salmonella Bacteremia 13 62% 100%

Pancreatitis 9 89% 100%

Strongyloidiasis 7 29% 100%

Cardiovascular Syphilis 105 50% 94%

Squamous Cell Carcinoma of the AnalCanal or Anal Margin 228 34% 92%

Malignant Neoplasm of Pleura 2,672 3% 91%

Parkinson's Disease 12,359 22% 89%

Multiple Myeloma 6,530 12% 88%

Malignant Neoplasm of Gallbladderand Extrahepatic Bile Ducts 1,240 3% 88%

Secondary Malignant Neoplasm 1,096 2% 88%

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From Office of the Inspector General, Social Security Administra-tion, DISABILITY IMPAIRMENTS ON CASES MOST FREQUENTLYDENIED BY DISABILITY DETERMINATION SERVICES AND SUBSE-QUENTLY ALLOWED BY ADMINISTRATIVE LAW JUDGES, August2010 A-07-09-19083, Audit Report. Available on the Internet athttp://www.ssa.gov/oig/ADOBEPDF/A-07-09-19083.pdf.


ImpairmentNumber of DDSDeterminations

DDS DenialRate


Malignant Neoplasm of Small Intestine 1,896 15% 87%

Liver Transplant 1,440 20% 86%

Malignant Neoplasm of Trachea,Bronchus, or Lung 60,516 3% 85%

Macroglobulinemia or Heavy Chain 156 22% 84%

Multiple Sclerosis 42,614 47% 84%

Neuroblastoma 1,527 10% 83%

Malignant Neoplasm of Colon,Rectum, or Anus 35,825 26% 82%

Malignant Neoplasm of Maxilla,Orbit, or Temporal Fossa 3,649 18% 82%

Kaposi's Sarcoma 142 17% 82%

Leukemia 17,959 13% 82%

Malignant Neoplasm of SkeletalSystem 1,502 19% 81%

Malignant Neoplasm of Prostate 10,174 41% 80%

Chronic Renal Failure 69,836 10% 80%

Malignant Neoplasm of Stomach 5,830 9% 80%

Anterior Horn Cell Disease (includingAmyotrophic Lateral Sclerosis) 4,661 1% 80%

Malignant Neoplasm of Bladder 4,896 25% 80%

Malignant Neoplasm of BladderPeripheral Vascular (Arterial) Disease 28,325 29% 80%

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§2:06 Appeals Council Review

If a decision after hearing is unfavorable, you or your lawyer mayask for review of that decision by the Appeals Council, which has itsheadquarters in Falls Church, Virginia. The Appeals Council maydecline to review the decision of the administrative law judge, in whichcase the decision of the ALJ becomes the final decision of the Commis-sioner of Social Security on your claim, subject to court review. TheAppeals Council may review the decision of the ALJ and affirm it, mod-ify it, reverse it, or remand it for a new hearing.

In some instances, the Appeals Council reviews decisions of admin-istrative law judges, both favorable and unfavorable to the claimant, onits own initiative.

Review by the Appeals Council is almost always a review of therecord, which means neither you nor your attorney appears in person.Although you or your attorney may petition to be allowed to appearbefore the Appeals Council, oral argument is virtually never granted.

§2:07 Federal Court

If the Appeals Council denies review or decides against you, youmay file a civil action in the United States District Court for the districtwhere you reside. The Commissioner of Social Security is named asdefendant. The court has the power to affirm, modify or reverse thedecision of the Commissioner, with or without sending the case back tothe ALJ for a rehearing.

If the U.S. District Court affirms the decision of SSA against you,you may appeal to the United States Court of Appeals for the circuit inwhich the district court sits. If the Court of Appeals denies your case,you may file a petition for certiorari with the United States SupremeCourt. Recently the Supreme Court has granted certiorari in (has agreedto hear) very few Social Security Act cases.

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§2:08 Diagram: The Appeal Process and Outcomes

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§2:09 Diagram: How Long Does Appeal ProcessTake?

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§2:10 Good Cause for Late Fil ing

If you do not meet the deadline for appealing, your attorney mayask that SSA extend the deadline by finding that there was good causefor missing the deadline. To do this, your attorney will send the appealalong with a detailed letter explaining why your appeal was late.Depending on the circumstances, you may need to sign an affidavit. IfSSA finds “good cause” for the delay in appealing, it will extend thetime limit.

In deciding whether you had “good cause” for missing a deadline,SSA will consider circumstances preventing a timely appeal, whetherany SSA action misled you and whether you failed to understand therequirement of timely appeal. Specifically, SSA will consider whetheryou had any physical, mental, educational, or linguistic limitations(including any lack of facility with the English language) which pre-vented you from filing a timely request or from understanding or know-ing about the need to file a timely request for review.

10 Examples of Good CauseExamples of good cause for missing a deadline include:

1. You were seriously ill and were prevented from contacting SSA inperson, in writing, or through a friend, relative, or other person.

2. There was a death or serious illness in your immediate family.3. Important records were destroyed or damaged by fire or other

accidental cause.4. You were trying very hard to find necessary information to sup-

port your claim but did not find the information within the stat-ed time periods.

5. You asked for additional information explaining SSA’s actionwithin the time limit, and within 60 days of receiving the expla-nation you requested reconsideration or a hearing, or within 30days of receiving the explanation you requested Appeal Councilreview or filed a civil suit.

6. SSA gave you incorrect or incomplete information about whenand how to request administrative review or to file a civil suit.

7. You did not receive notice of the determination or decision.

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8. You sent the request to another Government agency in good faithwithin the time limit and the request did not reach SSA until afterthe time period had expired.

9. Unusual or unavoidable circumstances exist, including the cir-cumstances described in paragraph 4, which show that you couldnot have known of the need to file timely, or which preventedyou from filing timely.

10. You thought your representative had filed the appeal.

Example 7 presents the common situation where a claimant says heor she did not receive the determination or decision. To prevail on thisissue, as a rule, you need more than simply your statement. For exam-ple, you could show SSA used an incorrect address or you moved.

Another common situation is where you failed to appeal timelybecause you were confused by information given by SSA. Informationfrom SSA need not be incorrect or incomplete. If the information wasconfusing, it could form the basis for an argument that there is goodcause for missing the deadline.

Mental Incapacity as Good CauseIf a claimant had no one legally responsible for prosecuting the

claim, “e.g., a parent of a claimant who is a minor, legal guardian, attor-ney, or other legal representative,” and the claimant shows that mentalincapacity prevented the claimant from timely appealing, “regardless ofhow much time has passed since the prior administrative action, theclaimant can establish good cause for extending the deadline to requestreview of that action.” The evidence must show that the claimant lackedthe mental capacity to understand the procedures for requesting review.Reasonable doubt is to be resolved in favor of the claimant.

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“What are the biggest mistakes people make when trying to get disabil itybenefits?

Failing to appeal is number one. More than half of the people whoseapplicat ions are denied fail to appeal. Many people who are denied on recon-siderat ion fail to request a hearing.” §3:01

Chapter 3

FREQUENTLY ASKED QUESTIONS

§3:01 Common Questions About Applying for DisabilityBenefits

§3:02 Form: Letter to Prospective Client§3:03 Form: Claimant Quest ionnaire§3:04 Form: Claimant Psychiatric Quest ionnaire

§3:01 Common Quest ions About Applying forDisabil ity Benef its

How can I tell if I am disabled enough to apply for Social Security disabil itybenefits?

Social Security regulations make it easier to be found disabled asyou get older. It becomes easier for a few people at age 45 (those unableto read English), for more people at age 50, for most people at age 55,and even more people at age 60. If you’re over age 55 and you cannot doany job you have done in the past 15 years, you should definitely apply.If you’re over age 50 and have a severe impairment that keeps you fromdoing all but the easiest jobs, you ought to apply.

37

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But even if you’re a younger person, you don’t have to be bedrid-den in order to be found disabled. If you’re under age 45 or 50 and youcannot do your past jobs and you cannot work full time at any regularjob, that ought to be enough.

Nevertheless, being unable to work and being found “disabled” bythe Social Security Administration (SSA) are two different things. It isoften difficult to convince SSA that someone is “disabled” even when heor she genuinely cannot work. But it is not impossible.

If you really cannot work, apply for disability benefits from SSA.And keep appealing denials at least through the hearing before anadministrative law judge. If you lose at a hearing, sometimes a lawyerwith experience handling disability cases can figure out a way to winyour case by pursuing the next appeal—to the Appeals Council.

How do I apply for Social Security Disabil ity or SSI benefits?The Social Security Administration (SSA) offers three ways for you to

apply for Social Security disability benefits: by telephone, in person at alocal Social Security office, or via the Internet. If you want to use the Inter-net to apply, go to www.socialsecurity.gov/applyfordisability/adult.htm.If you want to apply for SSA’s other disability program—SupplementalSecurity Income (SSI)—you cannot complete an SSI application online, butyou can complete one of the necessary supporting documents, the AdultDisability and Work History Report, on the Internet.

If you want to complete an application for SSI or Social Security dis-ability by telephone or in person, you must first telephone SSA at 1-800-772-1213. If you choose to go to a Social Security office to complete theapplication, the person at the 800 number above will schedule anappointment for you, give you directions to the Social Security office,and tell you what papers you need to bring along. If you want to applyby phone, you will be given a date and an approximate time to expect aphone call from someone at the Social Security office who will take yourapplication over the phone. The application will then be mailed to youfor your signature.

Do you have any advice about applying for disabil ity benefits?Yes. Give SSA all the information it asks for in a straightforward

way. Be truthful. Do not exaggerate or minimize your disability.

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Frequently Asked Questions 39

Should I contact a lawyer to help me apply for Social Security Disabil ity orSSI benefits?

As a rule, a person does not need a lawyer’s help to file the applica-tion. SSA makes this part very easy and, in fact, it usually will not let alawyer (or anyone else) file the application for you.

What happens if I am denied benefits and I do not appeal within 60 days?You’ll have to start over with a new application—and it may mean

that you’ll lose some back benefits. So it’s important to appeal all denialswithin 60 days. It’s better if you appeal right away so that you getthrough the bureaucratic denial system faster. The quicker you can getto the hearing stage the better.

How do I appeal?Your denial letter will tell you about appealing. The first appeal is

called a “reconsideration.” You must request reconsideration and then,after the reconsideration is denied, you must request a hearing withinthe 60-day time limit.

You can appeal in one of three ways: (1) telephone the Social Secu-rity Administration and make arrangements for your appeal to be han-dled by phone and mail; (2) go to the Social Security office to submityour appeal (If you go to the Social Security office, be sure to take alonga copy of your denial letter. And be sure that the Social Security repre-sentative gives you a signed copy of your appeal paper showing thatyou appealed on time); or (3) appeal online athttps://secure.ssa.gov/apps6z/iAppeals/ap001.jsp. Be sure to printand retain the receipt for your appeal so that you can prove youappealed on time.

What are the biggest mistakes people make when trying to get disabil itybenefits?

Failing to appeal. More than half of the people whose applicationsare denied fail to appeal. Many people who are denied on reconsidera-tion fail to request a hearing.

Another mistake, although much less common, is made by peoplewho fail to obtain appropriate medical care. Some people with long-term chronic medical problems feel that they have not been helpedmuch by doctors. Thus, for the most part, they stop going for treatment.

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This is a mistake for both medical and legal reasons. First, no one needsgood medical care more than those with chronic medical problems. Sec-ond, medical treatment records provide the most important evidence ofdisability in a Social Security case.

Since medical evidence is so important, should I have my doctor write a let-ter to the Social Security Administration and should I gather medicalrecords and send them to SSA?

SSA will gather the medical records, so you don’t have to do that.Whether you should ask your doctor to write a letter is a hard question.A few people win their cases by having their doctors write letters. Youcan try this if you want to. The problem is that the medical-legal issuesare so complicated in most disability cases that a doctor may inadver-tently give the wrong impression. Thus, obtaining medical reports maybe something best left for a lawyer to do.

When is the best time for a lawyer to get involved in my case?Many people wait until it is time to request a hearing before contact-

ing us to represent them. Although everyone agrees that a lawyer’s helpis essential at the hearing and the great majority of people who havelawyers win their cases at a hearing, how necessary it is to have the helpof a lawyer at the early stages is a subject with arguments on both sides.

More than one-third of those people who apply will be found dis-abled after filing the initial application without a lawyer’s help. About15% of those who request reconsideration are found disabled at thereconsideration stage, mostly without a lawyer’s help. If you are suc-cessful in handling the case yourself at the initial or reconsiderationsteps, you will save having to pay attorney’s fees. It is hard to predictwhich cases may benefit from a lawyer’s help early on.

If you want us to consider becoming involved in your case at the ini-tial or reconsideration steps, please telephone us to discuss your situa-tion. Otherwise, the best time to call us is as soon as you get the recon-sideration denial.

How much do you charge?Almost all of our clients prefer a “contingent fee,” a fee paid only if

they win. The usual fee is 25% (one-quarter) of back benefits up to amaximum amount set by SSA, currently $6,000.00. That is, the fee is one-

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fourth of those benefits that build up by the time you are found disabledand benefits are paid. No fee comes out of current monthly benefits.

Although the usual fee will not normally exceed $6,000.00, if wehave to appeal after the first administrative law judge hearing, our con-tract drops the $6,000.00 limit on fees. Even in this circumstance,though, our fee will not be greater than 25% of back benefits.

Sometimes at the request of a client, we charge a non-contingenthourly or per case fee. There is also the rare case where a contingent 25%fee arrangement is insufficient to allow for an adequate fee. In such acase, we use a different method of calculating the fee.

In addition to the fee, you will be expected to pay the expense ofgathering medical records, obtaining medical opinion letters, etc.

If I have other questions, will you answer them by telephone?Yes. If this book doesn’t answer your questions, please telephone

us.

§3:02 Form: Letter to Prospect ive Cl ient

Client’s NameAddressCity, State Zip

Re: Social Security Case

Dear Client’s Name:

This letter is to confirm your appointment with me at my office on_________ [day], __________ [date] at ______ [time].

When you come, please bring all of your Social Security papers (espe-cially the denial letters and appeal forms), includ ing any papers related toearlier applicat ions.

Be very careful about appeal deadlines. Please appeal any denial lettersas soon as possible. Please submit your appeal before the date of ourappointment. You may appeal by going to any Social Security office. Don’tforget to bring your copy of the appeal papers to our meeting.

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If you have any hospital records or med ical reports in your possession,please bring them, too. However, you don’t need to go to doctors or hospi-tals to get med ical records if you don’t already have them. If you have beeninvolved in any other d isability cases (such as short or long term d isability,worker’s compensation, etc.) please bring papers related to those cases, too.If you received Unemployment Compensation during any t ime you claim tobe d isabled, bring papers related to your Unemployment Compensationbenefits.

Please complete the enclosed quest ionnaire before our meeting. This isa long and detailed quest ionnaire; but all of the information requested onthe quest ionnaire is necessary in order to evaluate your case and effect ivelyrepresent you.

This questionnaire may take several hours to complete. If you do not haveit completed by the time of the appointment, please call and reschedule.

If you need help complet ing the quest ionnaire and no one is available tohelp you, please telephone me so that we can d iscuss how to deal with this.

Sincerely,

___________________________________(Name of Attorney)

§3:03 Form: Claimant Quest ionnaire

QUESTIONNAIRE

Name:_____________ Telephone: ____________________Address: ____________________ SSN: ____________________Date of Birth: ____________________

1. Are you a U.S. Cit izen? Yes No

2. On what date d id you apply for Social Security d isability and/or SSIbenefits? ____________________

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3. In your applicat ion for benefits, what date d id you state as the dateyou became unable to work? _________________________________________________________________________________________

4. List health cond it ions and when each cond it ion first bothered you(approximate date):________________________________________________________________________________________________________________________________________________________________________________________________________________________________

5. When d id you stop working? ______________________________

6. Why d id you stop working? ___________________________________________________________________________________________________________________________________________________

7. Why can’t you work now? ___________________________________________________________________________________________________________________________________________________

8. Please provide your work history for 15 years before you becameunable to work. Approximate dates are acceptable.

Start with your most recent job and then the next most recent job, etc.

(Use additional sheets of paper, if necessary.)

DATESWORKED

(MONTH &YEAR)FROM:

TO:

NAME ANDADDRESS

OFEMPLOYER

NAME OFJOB

&JOB

DUTIES

HOURSPERDAY

REASONFOR

LEAVING

HOURSPER

WEEK

RATEOF

PAY

Sitting:____Standing:___Walking:___



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USUAL WORK:

9. Which work do you consider to be your usual work? ____________________________________________________________________

MOST RECENT JOB:

10. For your most recent job in add it ion to the information providedon page 2, please answer the following:

a. What was the greatest weight you had to lift or carry on this job? _________ pounds

(1) How many t imes per day would you lift or carry this much? _________ t imes per day

(2) What object(s) weighed this much? ____________________

b. What was the average weight you had to lift or carry on this job?_________ pounds



c. Did you use machines, tools or equipment of any kind? Yes No

If yes, describe: __________________________________________________________________________________________________

d. Did you use technical knowledge or skills? Yes No

If yes, describe: __________________________________________________________________________________________________

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e. Did you do any writ ing, complete reports, or perform similarduties? Yes No

If yes, describe: __________________________________________________________________________________________________

f. Did you have supervisory responsibilit ies? Yes No

If yes, how many people d id you supervise? ___________________

g. Before you left this job, d id your med ical problems require you tomake any changes in the hours of work, the way you worked, yourjob duties, absences, etc.? If so, what were these changes?________________________________________________________________________________________________________________________________________________________________________

EASIEST JOB:

11. Which job listed on page two would be the easiest for you to donow, considering your med ical problems? (Do not describe any jobthat lasted less than three months.) ____________________________________________________________________________________________________________________________________________

For your easiest job, please answer the following:

a. Supervisor’s name: ________________________________________

b. In an average workday, how many hours were spent: Sitt ing: _______________Stand ing: _______________Walking: _______________

c. What was the greatest weight you had to lift or carry on this job?______________ pounds



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d. What was the average weight you had to lift or carry on this job?______________ pounds

(1) How many t imes per day would you lift or carry this much?_________ t imes per day


SEDENTARY / OFFICE WORK:

12. Have you ever had a desk or sit down job? o Yes o NoWhen? _____________________Where? _____________________

13. Have you ever had an office job? o Yes o No

Office Skills:Filing Typing / w.p.m.: __________________Office Machines ComputersDictat ion BookkeepingOther _________________________________________________

RECENT WORK:

14. Are you working now? Yes No

a. If so, where? ______________________________________________

b. Earnings per month (gross) $ _______________________________

15. Have you worked anywhere since you became d isabled?Yes No

When? _______________________What job? ____________________________Where? ______________________Why d id job end? ______________________

16. Have you applied for unemployment compensation (UC) since thedate you became unable to work? Yes NoIf yes, d id you receive UC benefits? Yes No

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If yes, what dates d id you receive UC benefits? _________________If no, why d idn’t you receive UC benefits? _____________________________________________________________________________

17. Have you ever lost or quit a job because of your limitat ions?Yes No

Explain yes answer: _______________________________________________________________________________________________

18. Have you applied for any jobs since the date you became unable towork? o Yes o NoIf yes, what job(s) d id you apply for? _________________________________________________________________________________

19. Are there any of your previous jobs that you think you might beable to do? o Yes o NoIf yes, which one(s)? _____________________________________________________________________________________________

EDUCATION:

20. What was the highest grade you completed in school? __________

a. When d id you last go to school______________________________

b. Name of last school: ____________________________City & State: ________________________

c. Did you repeat any grades? Yes NoIf yes, which one(s)? _________________________

d. Were you in special classes? Yes NoIf yes, describe: _____________________________

e. If you left school before complet ing high school:

1) Did you get a GED? Yes NoWhen? _____________________________

2) What was the reason for leaving school? _____________________

Ch. 3.qxd 8/21/2013 4:24 PM Page 47


f. How well do you read?above average below averageaverage Illiterate/unable to read English

If below average or illiterate,

1) Are you able to read a menu or list? Yes No

2) Are you able to read simple instruct ions? Yes No

3) Has your read ing been tested? If so, where? ________________________________________________________________

g. Are you able to do the following mathematics? (Check all that youcan do.)

Make Change Decimals/Fract ionsAdd and Subtract Higher MathematicsMult iply and Divide

h. Were you an A B C D student in high school?

VOCATIONAL TRAINING:

21. For any vocational training you have had in your life, please identifythe school, the type of training, dates attended and whether youcompleted the program: _____________________________________________________________________________________________________________________________________________________

a. Have you ever been evaluated by the state vocational rehabilitat ionagency?

Yes NoIf no, why not?___________________________________________________

b. If yes, please complete the following:

MILITARY:

VOC. REHABILITATIONCOUNSELOR'S NAME ADDRESS DATES

Ch. 3.qxd 8/21/2013 4:24 PM Page 48


22. Were you ever in the military? Yes No

a. Branch: __________________ When? __________________Highest Rank: ___________________

b. Nature of d ischarge: _____________________________________________________________________________________________

c. Describe any special training: _______________________________________________________________________________________

VETERANS DISABILITY:

23. Have you ever applied for VA d isability? Yes No

a. If yes, was it for: service connected or non-service connectedd isability?

b. What was the percentage rat ing? ______ What was the date of therat ing? _____________________

c. When d id benefits begin? ___________________________________

d. What were the med ical problems that the VA rat ing was based on?__________________________________________________________________________________________________________________

e. Is your VA d isability claim pend ing now? Yes NoIf yes, please give us the name and address of your representat ive(if you have one): _____________

MEDICAL INFORMATION:

24. Current Height: _______________________________Current Weight: _______________________

a. How much is your usual weight? ________________________

b. When was the last t ime you weighed this much? __________

Ch. 3.qxd 8/21/2013 4:24 PM Page 49


25. Do you smoke? Yes NoIf yes, how much? ____________________

26. Have you ever been treated by a psychiatrist or psychologist?Yes No

If yes, give details includ ing dates, reasons for treatment, andnature of treatment: ________________________________________________________________________________________

27. Have you ever had any problems with alcohol or drug abuse?Yes No

If so, describe problem: __________________________________________________________________________________________

28. Have you ever been treated for alcohol or drug abuse?Yes No

a. If yes, when and where? ____________________________________

b. When d id you recover from alcohol/drug abuse? ________________

CURRENT MEDICAL PROBLEMS:

29. Since the date you became d isabled, have you been gett ing betteror worse?

Better o Worse Same

30. Will you ever get well enough to work again? Yes NoIf yes, when? ________________

31. Has any doctor told you not to work? Yes NoIf yes, who? ___________ When? _______

32. Has any doctor told you to limit your act ivit ies? Yes No

a. If yes, please describe the limitat ions: ________________________________________________________________________________

b. Which doctor(s) told you this? _________________________When? ______________

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33. Do you have a hand icapped-parking permit? Yes No

a. If yes, which doctor signed the papers for it? ___________________

34. Which doctor knows you best? _______________________________

35. Do you have any current problem with any of the following?

36. If you answered Yes to Drug Abuse in the above quest ion, pleaseexplain: _______________________________________________________________________________________________________

37. Do you drink any alcohol? Yes No

If yes, please answer the following quest ions:

a. What sort of alcoholic beverage do you usually drink? ___________

b. How much alcohol do you drink in a typical week? ______________

c. During the past month, was there any single day in which you hadfive or more drinks of beer, wine or liquor? Yes No

d. During the past six months, have you thought you should cut downon your drinking of alcohol? Yes No

e. During the past six months, has anyone complained about yourdrinking? Yes No

Shortness of breath Yes No

Coughing up blood Yes No

Hot/cold flashes Yes No

Excessive sweating Yes No

Heart palpitations Yes No

Diarrhea Yes No

Controlling your urine Yes No

Vision Yes No

Drug abuse Yes No

Alcohol abuse Yes No

High blood pressure Yes No

Dizziness Yes No

Swelling of feet/ankles Yes No

Blackouts Yes No

Fatigue Yes No

Difficulty sleeping Yes No

Recent weight loss Yes No

Recent weight gain Yes No

Ch. 3.qxd 8/21/2013 4:24 PM Page 51


f. During the past six months, have you felt guilty or upset about yourdrinking? Yes No

g. As a result of alcohol use, have you ever lost a job? Yes No

h. As a result of alcohol use, have you ever lost a friend? Yes No

PAIN:

38. If your d isability involves physical pain, answer the following: (Ifphysical pain is not your problem, go on to quest ion #39.)

a. Approximate date pain began: _______________________________

b. What event caused the pain (e.g., accident, d isease, surgery,unknown)? ________________________________________________________________________________________________________

c. What does your pain feel like? _______________________________________________________________________________________________________________________________________________

d. What reasons have your doctors given for your pain? ____________________________________________________________________________________________________________________________

e. Does pain: lessen or increase when you push on the painfulspots?

f. Are any of the following associated with your pain? Check those thatapply:

Numbness Tingling (pins and needles) Weakness Increased sweating Muscle spasm Skin d iscolorat ionNausea Loss of sleep Crying spells Loss of concentrat ionDepression Agitat ion

Ch. 3.qxd 8/21/2013 4:24 PM Page 52


g. Location of pain: Please shade in areas of pain.

BE AS SPECIFIC AS POSSIBLE.

h. Is pain: Constant? Often? Occasional?

i. How many hours per day do you have pain? ____________

j. If you do not have pain every day, est imate how many hours of painper week, or days per week or month: ________________________

k. Below is a list of act ivit ies. For each act ivity ind icate how it affectsyour pain.

l. What else increases your pain? ______________________________________________________________________________________

INCREASES DECREASES NO EFFECT

Lying down

Sitting

Rising from sitting

Sitting with legs elevated

Standing

Walking

Bending

Coughing/Sneezing

Ch. 3.qxd 8/27/2013 10:39 AM Page 53


m. Below is a list of treatments you may have used to relieve pain. Foreach of these, ind icate whether you have tried it and, if you triedit, the degree it helped.

n. What other things relieve your pain? _________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

o. Does drinking alcoholic beverages relieve your pain? Yes No

Treatment Have you tried?

Heat Yes No

Massage Yes No

Whirlpool Yes No

Traction Yes No

Prescribed Exercise Yes No

Bed Rest Yes No

TENS (electricalstimulation) Yes No

Biofeedback Yes No

Trigger Point Injections Yes No

Nerve Blocks Yes No

Acupuncture Yes No

Chiropractic Treatments Yes No

Cranial Sacral Therapy Yes No

Behavior Modification Yes No

Counseling/ Psychotherapy Yes No

Herbs, VitaminsSupplements, etc. Yes No

Pain Clinic/ Pain Program Yes No

Rate Helpfulness0 = No Help; 10 = Excellent Relief

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

Ch. 3.qxd 8/21/2013 4:24 PM Page 54


p. If you d id not have pain, what things would you do that you cannotdo now because of the pain? __________________________________________________________________________________________________________________________________________________

q. Rating pain. Circle the one number that best describes your pain:

I. Pain Severity

A. Rate how severe your pain is right now, at this moment when fill-ing out this quest ionnaire:

B. Rate how severe your pain is at its worst:

C. Rate how severe your pain is on the average:

D. Rate how much your pain is aggravated by activity:

E. Rate how frequently you experience pain:

II. Activity Limitation or Interference

A. How much does your pain interfere with your ability to walk oneblock?

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

No pain Most severe pain you can imagine

No pain Excruciating

No pain Excruciating

Rarely All the time

Activity does not aggravate pain Excrutiating following any activity

Does not restrict ability to walk Pain makes it impossible for me to walk

Ch. 3.qxd 8/21/2013 4:24 PM Page 55


B. How much does your pain prevent you from l ifting 10 pounds (abag of groceries)?

C. How much does your pain interfere with your ability to sit for ½hour?

D. How much does your pain interfere with your ability to stand for ½hour?

E. How much does your pain interfere with your ability to get enoughsleep?

F. How much does your pain interfere with your ability to participatein social activities?

G. How much does your pain interfere with your ability to travel up to1 hour by car?

0 1 2 3 4 5 6 7 8 9 10

Does not interfere at all with lifting 10 pounds Impossible to lift 10 pounds

0 1 2 3 4 5 6 7 8 9 10

Does not restrict ability to sit for ½ hour Impossible to sit for ½ hour

0 1 2 3 4 5 6 7 8 9 10

Does not interfere at all with standing for ½hour Unable to stand at all

0 1 2 3 4 5 6 7 8 9 10

Does not prevent me from sleeping Impossible to sleep

0 1 2 3 4 5 6 7 8 9 10

Does not interfere with social activities Completely interferes with social activities

0 1 2 3 4 5 6 7 8 9 10

Does not interfere with ability to travel 1 hourby car

Completely unable totravel 1 hour by car

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H. In general, how much does your pain interfere with your dailyactivities?

I. How much do you l imit your activities to prevent your pain fromgetting worse?

J. How much does your pain interfere with your relationship withyour family/ significant others?

K. In general, how much does your pain interfere with your ability todo jobs around your home?

L. How much does pain interfere with your ability to bathe withouthelp from someone else?

M. How much does your pain interfere with your ability to write ortype?

N. How much does your pain interfere with your ability to dressyourself?

0 1 2 3 4 5 6 7 8 9 10

Does not interfere at all My pain makes it impossible to dress myself

0 1 2 3 4 5 6 7 8 9 10

Does not interfere with my daily activities Completely interferes with my daily activities

0 1 2 3 4 5 6 7 8 9 10

Does not interfere with relationships Completely interferes with relationships

0 1 2 3 4 5 6 7 8 9 10

Does not limit activities Completely limits activities

0 1 2 3 4 5 6 7 8 9 10

Does not interfere at all Completely unable to do any job around home

0 1 2 3 4 5 6 7 8 9 10

Does not interfere at all My pain makes it impossible to shower orbathe without help

0 1 2 3 4 5 6 7 8 9 10

Does not interfere at all My pain makes it impossible to write or type

Ch. 3.qxd 8/21/2013 4:24 PM Page 57


O. How much does your pain interfere with your ability to concentrate?

III. Effect of Pain on Mood

A. Rate your overall mood during the past week.

B. During the past week, how anxious or worried have you beenbecause of your pain?

C. During the past week, how depressed have you been because ofyour pain?

D. During the past week, how irritable have you been because of yourpain?

E. In general, how anxious/ worried are you about performing act ivi-t ies because they might make your pain/symptoms worse?

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

Not at all depressed Extremely depressed

Not at all anxious/worried Extremely anxious/worried

Extremely high/good Extremely low/bad

Never All the time

0 1 2 3 4 5 6 7 8 9 10

0 1 2 3 4 5 6 7 8 9 10

Not at all anxious/worried Extremely anxious/worried

Not at all irritable Extremely irritable

Ch. 3.qxd 8/21/2013 4:24 PM Page 58


MEDICATIONS:

39. For each prescription drug you are presently taking, please com-plete the following:

40. For each non-prescript ion drug you are taking, complete thefollowing:

NAME OFMEDICATIONANDDOSAGE

DAILYAMOUNTTAKEN

FOR WHICHCONDITION

NAME OFPRESCRIBINGDOCTOR

APPROX.DATE STARTED

IDENTIFY SIDEEFFECTS YOUARE HAVINGFROM THISDRUG

NAME OF MEDICATIONAND DOSAGE

HOW MUCH DO YOUTAKE PER DAY FOR WHICH CONDITION

Ch. 3.qxd 8/21/2013 4:24 PM Page 59


41. For each doctor the Social Security Administration sent you to forexamination concerning your d isability, please complete the following:

DAILY ACTIVITIES:

42. a. What is the amount of your current income? $_____________ permonth

b. What is the source of your current income? ___________________________________________

43. a. Where do you currently live?

apartment duplex single family home

condominium trailer rooming house

b. Do you own or rent? own rent

44. a. Please ident ify all of your children who are now under age 18 orwho were under age 18 at the t ime you became d isabled.Please list children even if they do not live with you. For eachchild who does not live with you, please tell us who the childlives with. Please include each child’s date of birth and SocialSecurity Number (SSN).

NAME ANDADDRESSOF DOCTOR

DOCTOR'SSPECIALTY

APPROX.DATE OFEXAM

LENGTH OF EXAM(MINUTES)

DESCRIBE THE EXAMINATIONAND ANYTHING THE DOCTORTOLD YOU ABOUT YOURCONDITION

CHILD'S NAME AGE DATE OF BIRTH LIVES WITH

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b. Please give the names and ages of people other than your minorchildren living with you and ind icate their relat ionship to you(e.g., step-son, adult daughter, sister, friend, etc.):

45. What are the names of the two people with whom you spend themost t ime?

a. _____________________________________b. _____________________________________

46. At present, how much t ime do you spend each day:

47. a. How well do you sleep? good fair poor

Explain fair or poor answer: __________________________________________________________________________________________

b. Do you elevate the head of your bed or sleep on extra pillows?Yes No

If yes, how high is the head of the bed elevated or how many pil-lows do you use? _________________________________________________________________________________________________

NAME AGE DATE OF BIRTH LIVES WITH

HOURS PER DAY

Lying down or reclining

Sitting upright

Standing/walking

TOTAL HOURS PER DAY: 24

Ch. 3.qxd 8/21/2013 4:24 PM Page 61


48. a. Ind icate if you use any of the following assist ive devices:

b. Please describe any other assist ive devices you use or any homemod ificat ions you have done to accommodate your d isability:________________________________________________________________________________________________________________________________________________________________________________________________________________________

49. Please check what you do and how often. If you need help or do apoor job please ind icate.Give examples as appropriate.

Regular cane

Four-footed cane

Walker

Wheel chair

Special mattress

Hospital bed

Shower bar

Shower chair

High toilet seat

Grabber

Sock tube

Lift chair

SEVERALTIMES ADAY

DAILY WEEKLY MONTHLY NEVEREXAMPLES -NEED HELP, DO APOOR JOB

Drive

Cook

Wash dishes

Straighten uphouse

Dust

Vacuum

Mop floor

Do laundry

Cleanbathroom

Ch. 3.qxd 8/21/2013 4:24 PM Page 62


SEVERALTIMES ADAY


Make bed

Change bedsheets

Yard work

Gardening

Shovel snow

Fix things

Grocery shop

Pay bills,handlefinances

Watchchildren

Groom self

Participate inorganizations

Attendreligiousservices

Play cards/games

Attend sportsevents

Ch. 3.qxd 8/21/2013 4:24 PM Page 63


SEVERALTIMES ADAY


Make bed

Change bedsheets

Yard work

Gardening

Shovel snow

Fix things

Grocery shop

Pay bills,handlefinances

Watchchildren

Groom self

Participate inorganizations

Attendreligiousservices

Play cards/games

Attend sportsevents

Ch. 3.qxd 8/21/2013 4:24 PM Page 64


50. ONGOING ASSISTANCE: Does anyone have to help you to dothings around the house on a regular basis? Who? What do they do?________________________________________________________________________________________________________________________________________________________________________

SEVERALTIMES ADAY


Hobbies(name)

Visit relatives

Visit friends

Talk toneighbors

Go out to eator to movies

Use publictransportation

Exercise

Watch TV orlisten to radio

Number ofhours perday:

ReadNumber ofhours perday:

Talk on phoneNumber ofhours perday:

Sleep/stay inbed


Sleep/lie oncouch


Ch. 3.qxd 8/21/2013 4:24 PM Page 65


51. PHYSICAL LIMITATIONS:

NOTE: If your disability is psychiatric and you have no physical limita-tions, it is not necessary to complete question 51. Go on to question 52.

a. SITTING:

What best describes your ability to sit?

If you have trouble sitting:

List examples of activities you have trouble performing while sitting:________________________________________________________________________________________________________________

1) What is your best est imate of how long you can sit continuous-ly in one stretch in a work chair (not a recliner) before you mustget up and move around or lie down?

Hours/minutes: __________

2) If you were sitt ing on and off throughout a workday, how manyhours total out of an 8-hour workday in a regular work sett ingcan you sit?

Hours: __________

I have no problem sitting.

I can sit with some difficulty.

I can sit with great difficulty.

I cannot sit at all.

Where do you have pain or discomfort when you sit too long?

What do you do to relieve that pain or discomfort?

Do you elevate your legs while sitting? Yes No

Does it make a difference what kind of chair you sit on? Yes No

What kind of chair is best for you?

Ch. 3.qxd 8/21/2013 4:24 PM Page 66


b. STANDING:

What best describes your ability to stand?

If you have trouble stand ing:

List examples of activities you have trouble performing while stand ing:________________________________________________________________________________________________________________

1) What is your best est imate of how long you can stand continu-ously in one stretch without sitt ing down or walking around?

Hours/minutes: __________

2) If you were stand ing on and off throughout a workday, howmany hours total out of an 8-hour workday in a regular worksett ing can you stand?

Hours: __________

c. WALKING:

What best describes your ability to walk?

I have no problem standing.

I can stand with some difficulty.

I can stand with great difficulty.

I cannot stand at all.

I have no problem walking.

I can walk with some difficulty.

I can walk with great difficulty.

I cannot walk at all.

Where do you have pain or discomfort when you stand too long?


Ch. 3.qxd 8/21/2013 4:24 PM Page 67


If you have trouble walking:

List examples of activities you have trouble performing while walking:________________________________________________________________________________________________________________

1) What is your best est imate of how far you can walk continuous-ly in one stretch without stopping to rest?

Blocks: __________

2) How many hours total out of an 8-hour workday in a regularwork sett ing can you walk?

Hours: __________

d. LIFTING AND CARRYING:

What best describes your ability to lift and carry?

If you have trouble walking:

Where do you have pain or discomfort when you walk too long?


Do you ever use a cane or other device to help you walk? Yes No

I have no problem lifting and carrying.

I can lift and carry with some difficulty.

I can lift and carry with great difficulty.

I cannot lift and carry at all.

What is the heaviest thing that you encounter in your everyday life, which you can still liftor carry (for example, gallon of milk, 8-pack of soda, a bag of groceries, basket of laun-dry, small children or grandchildren)?

What happens when you try to lift or carry too much?

Ch. 3.qxd 8/21/2013 4:24 PM Page 68



What is your best estimate of the maximum weight you can lift or carry ina regular work situation:

1) if you had to lift or carry only rarely or once in a while?

__________ pounds

2) if you had to lift or carry up to one-third of the workday?

__________ pounds

3) if you had to do it from one-third to two-thirds of the workday?

__________ pounds

e. LEGS AND FEET:


f. ARMS AND HANDS:

Do you have any trouble using your legs or feet? Yes No

Do you have any trouble using your legs and feet to drivea car? Yes No

Are you left or right handed? Left Right

Do you have any problems using your hands or arms? Yes No

Do the problems occur with repetitive use of your handsor arms? Yes No

Can you make a fist with each hand? Yes No

Can you touch each finger to the thumb on each hand? Yes No

Do your hands shake? Yes No

Ch. 3.qxd 8/21/2013 4:24 PM Page 69


List examples of activities you have d ifficulty performing with yourhands:________________________________________________________________________________________________________________

g. OTHER EXERTIONAL LIMITATIONS:

If yes, complete the following:

h. ENVIRONMENTAL RESTRICTIONS: Are there any restrict ions onyour act ivit ies, or problems which you encounter, having to do withany of the following situat ions?

Describe the problem:

1) Unprotected heights: ____________________________________

2) Being around moving machinery: __________________________

Do you have any trouble with your hands being numbor having pins and needles? Yes No

Do you have any trouble with dropping things? Yes No

Have you lost strength in your hands or arms? Yes No

Can you reach above your head (for example, to put thingsaway in kitchen cupboards)? Yes No

Do you have any problems writing a letter? Yes No

Do you have any difficulty playing cards? Yes No

Do you have trouble doing any of the following things? Yes No

CAN'T DOAT ALL

ONCE ISOKAY

A FEW TIMESPER HOUR

IS OKAY

REPETITIVELYIS OKAY

Bending:

Twisting:

Squatting:

Climbing stairs:

Ch. 3.qxd 8/21/2013 4:24 PM Page 70


3) Exposure to marked changes in temperature or humid ity:____________________________________________________

4) Exposure to dust, fumes or gases: ________________________

52. Do you have any current problem with any of the following?

53. GOOD DAYS AND BAD DAYS:

a. Do you have good days and bad days? o Yes o No

b. Approximately how many days per month are good days? _______

Approximately how many days per month are bad days? ________

c. What tends to produce good days? __________________________

d. What is a good day like? ___________________________________

e. What tends to produce bad days? ___________________________

f. What is a bad day like? _____________________________________

OTHER:

54. Are the med ical providers listed on your denial letters a completelisting of those needed to get a full understand ing of your d isability? o Yes o No

If no, what other med ical providers should be contacted? _______________________________________________________________

Depression Yes No

Anxiety attacks Yes No

Memory Yes No

Dealing with stress Yes No

Dealing with the public Yes No

Relating to other people Yes No

Maintaining attention Yes No

Loss of concentration Yes No

Ch. 3.qxd 8/21/2013 4:24 PM Page 71


55. What is the name, address, and telephone number of someone whodoesn’t live with you but will always be able to find you?

56. Have you ever been convicted of a felony? Yes No

If yes, explain: __________________________________________________________________________________________________

57. Are you on probation or parole right now? Yes No

If yes, please provide the following:

Name of probation/parole officer: ___________________________

Probation/parole officer address: ___________________________

Probation/parole officer telephone: _________________________

58. Please provide the following (if you have them):

a. Your cell phone number: _____________________

b. Your fax number: _____________________

c. Your email address: _____________________

59. Other information you consider important: ___________________________________________________________________________________________________________________________________

60. Did you need help to complete this quest ionnaire? o Yes o No

If yes, who helped you? ____________________________________________________________________________________________

Name:

Address:

Telephone:

Relationship:

Ch. 3.qxd 8/21/2013 4:24 PM Page 72


Name: ________________________ Date: _________________________

THIS IS VERY IMPORTANTDOCTORS, ETC.:

1. For each doctor, chiropractor, psychologist, psychological coun-selor, etc., you have seen, please complete the following chart.

List the doctors you are seeing now first and work your way backto about five years before you became unable to work.

(PLEASE USE ADDITIONAL PAPER, IF NECESSARY)

NAMEAND

ADDRESSOF

DOCTOR,ETC.

DATE OFFIRSTVISIT

(APPROX.)

DATE OFLAST VISIT(APPROX)

APPROX.HOW MANY

VISITSTOTAL?

WHICH|CONDITION

WASTREATED

DESCRIBE ANYRESTRICTIONOF ACTIVITIES

IMPOSED ORWHAT YOU

WERE TOLDABOUT YOURCONDITION

Ch. 3.qxd 8/21/2013 4:24 PM Page 73


HOSPITALIZATIONS:

2. For each hospitalization (where you stayed at least one night),please complete the following chart.

List your most recent hospital ization first and work your wayback to about five years before you became unable to work.


NAME ANDADDRESS OF

HOSPITAL

APPROX.DATES

WHY WEREYOU

HOSPITALIZED

DESCRIBE THETREATMENT

YOURECEIVED

NAMES OFDOCTORS WHOTREATED YOU

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3. For each outpatient visit to a hospital, d iagnostic center, rehabilita-tion center or physical therapy clinic (for example, for emergencyroom care, physical therapy or other treatment, d iagnostic tests,etc.), please complete the following chart:

List your most recent visit first and work your way back to aboutfive years before you became unable to work.


NAME AND ADDRESS OFHOSPITAL, CENTER OR

CLINIC

APPROX.DATE

DESCRIBE THETREATMENT OR

DIAGNOSTIC TESTS

NAMES OFDOCTORS ORTHERAPISTS

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§3:04 Form: Claimant Psychiatric Quest ionnaire

Name: ______________________________________________

1. List names and addresses of psychologists and psychiatrists whohave evaluated or treated you:

2. List names and addresses of psychiatric social workers and coun-selors who have counseled you:

3. List the names and addresses of hospitals where you have had apsychiatric hospitalizat ion:

4. Have you had any of the following tests in the last two years?

5. List all of your psychiatric d iagnoses: ________________________________________________________________________________________________________________________________________

6. When d id you first have someone give you these d iagnoses?__________________________________

7. Please place a check mark beside each statement below thatdescribes you.

a._____ I have lost interest in my normal act ivit iesb._____ I feel nervous or anxious a lotc._____ I sleep fairly welld._____ I have trouble making my own decisionse._____ Sometimes I suddenly feel fear or panicf.______ I like to be with people

Ch. 3.qxd 8/21/2013 4:24 PM Page 76


g._____ I have trouble understand ing d irect ionsh._____ I have considered or attempted suicide i.______ I lack confidence j.______ I am sad most of the t ime k._____ I am able to pay attention to act ivit ies I like l.______ I have been told in the last two years that I should cut

down or stop using alcohol or drugs m.____ People make me happy n._____ I make bad decisions in a work sett ing o._____ I have trouble remembering recent things p._____ I sleep too much q._____ People in the workplace have liked me r.______ I am intelligent s._____ I have hope for my future t._____ I hear voices or see things that other people do not see or

hear u._____ I sometimes use alcohol or street drugs to help myself feel

better v._____ I sometimes overuse my prescript ions to help myself feel

better w._____ I am basically a happy person despite all of my problems x._____ I can do simple jobs or tasks as long as I do not have to deal

with a lot of people y._____ I depend on others too much z._____ I feel guilty a lot aa.____ I have trouble gett ing along with family, neighbors or

others bb.____ I have trouble with my temper cc.____ I do not trust people dd.____ I could do some jobs but people will not hire me ee.____ Sometimes I lose control over my body parts ff._____ People are out to get me gg.____ I have been told that I am in good physical health hh.____ I think I have a serious und iagnosed illness ii._____ My appetite or eat ing has changed jj._____ I have racing or confusing thoughts kk.____ I know things will get better ll._____ I had help filling out this quest ionnaire

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8. If there are any alcohol, drug or abuse of prescript ion med icat ionissues, please describe:

Substance(s) used: ________________________________________

How often: ______________________________________________

How much: ______________________________________________

Describe any treatment for this problem: _____________________________________________________________________________

9. Explain why you could not complete a regular work week withoutyour mental problem(s) interfering: __________________________________________________________________________________

10. Describe any crit ical events in your life that contributed to yourmental problems (e.g., accidents, vict im of crime or abuse, etc.):________________________________________________________

11. Please complete the following sentences:

I have trouble concentrat ing and paying attention when: ______________________________________________________________

If I had a job, I would need special help from a supervisor to get sim-ple tasks completed because: ______________________________________________________________________________________

I could not understand and follow simple instruct ions on a jobbecause: ________________________________________________

My mental problems would not allow me to work because: _______________________________________________________________

Examples of how my habits have deteriorated are: _____________________________________________________________________

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The biggest d ifficulty I would have on a job is: _________________________________________________________________________

What makes me happiest is: ________________________________________________________________________________________

I am afraid of: ____________________________________________________________________________________________________

What I like best about myself is: _____________________________________________________________________________________

I get angry with myself when I: ______________________________________________________________________________________

Date completed: ____________________

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“The issue is never whether the claimant can get a job. Rather, the issueis whether the claimant is capable of performing a job.” §4:09

Chapter 4

FIRST MEETING WITH YOURATTORNEY

§4:01 Init ial Interview§4:02 Your Attorney Will Analyze Your Answers§4:03 Form: Attorney’s Interview Questions§4:04 Form: Attorney’s Analysis of Your Case§4:05 Onset Date of Your Disability§4:06 Unsuccessful Work Attempts§4:07 Prior Applicat ions§4:08 Receipt of Unemployment Compensation Benefits§4:09 Educating You About Disability Law§4:10 Putt ing You at Ease About Hearing Process§4:11 Identifying Your Strengths and Weaknesses as a

Witness§4:12 Identifying Other Potential Witnesses§4:13 Keeping a Daily Diary§4:14 Things for Your Attorney to Do§4:15 Form: Attorney’s to-Do Checklist§4:16 Form: Monthly Headache Diary

81

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§4:01 Init ial Interview

Every Social Security disability case presents a little puzzle for yourattorney to assemble. The pieces of the puzzle include your age, educa-tion, work experience, and current capacity for work. These puzzlepieces need to be put together with the Social Security regulations andrulings to make a complete picture showing that you are entitled toSocial Security disability benefits. Although not all of the pieces of thispuzzle may be available at your initial interview with your attorney,most are. A thorough interview can usually give your attorney a prettygood idea whether he or she can win your case. Sometimes, though,your attorney will need to review your Social Security file first to deter-mine the chances of success.

If your claim has already been denied, your attorney will be focusedon determining what evidence will be needed to win your hearing. Ifyou haven’t yet applied or your claim is still pending, your attorney willbe focused on the exact same evidence because your attorney may beable to use this evidence to convince a state agency decision-maker thatyou are disabled, thus making a hearing unnecessary.

§4:02 Your Attorney Wil l Analyze Your Answers

Your attorney will probably want to begin the interview by puttingyou at ease. He or she may ask you to explain why you think the SSAshould find you to be disabled (or should have found you to be dis-abled, if your claim has already been denied).

If your claim has been denied, your attorney will want to figure outwhy as soon as possible so he or she can focus on this crucial issue earlyin the interview. For example, one common reason why a claim by a lit-erate, English-speaking claimant under age 50 is denied is that the SSAbelieves the claimant has the capacity for a wide range of sedentarywork. If you are in this situation, your attorney will want to identify rea-sons why you can’t do most sedentary jobs.

Reasons Why You Can’t Work that Are Irrelevant to SSAClaimants frequently provide one or more of the following reasons,

but all of these are irrelevant to the SSA:

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First Meeting with Your Attorney 83

• I’m not qualified for sedentary jobs. (Education and work expe-rience are irrelevant for literate English-speaking people underage 50.)

• I can’t get such a job. • Employers wouldn’t hire me for such a job because of my age,

race, sex, etc.• Even though I could do the job, I would never pass the physical

because of all my medical problems. (Although, generally irrele-vant, all of these medical problems could mean that you cannotmaintain reasonably consistent attendance or minimum produc-tion standards. These are very relevant.)

• There is no sedentary work around here.• There aren’t any job openings.• I wouldn’t like a job like that.• The pay is too little.

If these are the only reasons that you cannot do sedentary work andyou are a literate, English speaking claimant under age 50, you will loseunless your impairments meet or equal a Listed Impairment. See §1:11.You will not be found disabled though you are certain that because ofage, medical problems, poor education, work experience or theunavailability of sedentary work in your area, you will never get asedentary job. This is the situation with the 48-year-old constructionworker in §1:01.

You must look at the aspects of your situation that are relevant todisability determination. There are lots of valid ways to prove that aclaimant cannot do a full range of sedentary work. Claimants, with thehelp of lawyers who listen carefully to them, come up with newapproaches all the time. Your attorney’s most important function is toexplore your reasons and circumstances thoroughly, since your answersmay includes valid factors that may result in a disability finding. Inmany cases a skilled disability attorney can put together a persuasiveargument even for difficult cases involving claimants under age 50.

The most important information you need to provide to your attor-ney is the description of your symptoms, not a list of your medicalimpairments. Symptoms are what you know best. It is your attorney’s

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job to make sure there is a clear link between your medical impairmentand your symptoms. A symptom unrelated to a diagnosed medicalimpairment cannot form the basis for a finding of disability.

Once your attorney has a basic understanding of your case, it willbe time to impose more structure on the interview and gather the detailsnecessary to win the case. A sample interview form you’re your attor-ney may use to take notes during your interview follows. It can be usedwith the questionnaire in §3:03 to get a complete picture of your case.

§4:03 Form: Attorney’s Interview Quest ions

Name: ________________________________ Mr. Ms.

Date: _________________________________

Address: ____________________________________________________________

Time: ________ Rep: _______ Asst. _____

SSN: _______________________

Telephone: ____________________________ DOB: ____________

Message #: ____________________________ Age: ____________

Married Single Widowed Divorced Separated

Other names used during relevant t ime period: ____________________

*or under 19 and st ill in high school

Total number of children: Number of children under 18*at any time after onset date:

Number of stepchildren under18* who reside with claimant:

[Parent's name in child'scase]

SSN:**SSI disabled couple andWidow(er) cases only

Date of Death[Widow(er)]:

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Referred By: _____________________________________

Type of Claim: Init ial Term Other

ALJ: ___________________________________________________

Fee: Petit ion Agreement Two-Tier W/hold ing waived

ALJ Address: ___________________________

Stage of Claim: _________________________

Local Office Address: ____________________________________

Await ing: _______________________________________

Hearing Preparation Appointment: Date: Time:

Prior Applications: __ Yes __ NoDates and Results: _____________________________________

Identify reopening earlier application as an issue on Analysis form.

Hearing Termination Cases

Date: Time: Date Disability Ceased:

VE: Continuing Benefits: __ Yes __ No

ME: Date LastCheck:

Amountof Check:

Application/Termination Reconsideration Hearing Request

Application Date: Recon. Request Date: __ Not yet filed

Denial/Term. Date: Recon. Denial Date: Date filed:

Rationale: Rationale: Timely: __ Yes __ No

Why not?

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Identify any problem with t imeliness of appeal as issue on Analysis form.

PRESENT SYMPTOMS

SYMPTOM 1 SYMPTOM 2 SYMPTOM 3 SYMPTOM 4

Location:

Description:(considerdescribingoccasional radiation of painas a separatesymptom)

Frequency:

Duration:

What starts it?

What aggravatesit?

Intensity at itsworst

1 - 10:

Usual intensity1 - 10:

Intensity at itsbest

1 - 10:

What makes itbetter?

Effectiveness ofmedication:

Side effects ofmedication:

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Rank symptoms on Analysis form.

How often do you have any of the following?

At what pharmacies have you purchased seizure med icat ion in the pastyear? ___________________________________________________________________________________________________________________________________________________________________________________________

Can you ask your pharmacist(s) to provide a summary of all seizuremed icat ion purchased in the past year? ______________________________________________________________________________________________

Have you had any of the following tests recently?

Nausea: Crying spells:

Fainting: Headaches:

Dizziness: Spasms:

Bladder controlproblems: Cramps:

Seizures: Diarrhea:

Dates of mostrecent seizures:

TEST WHERE DONE APPROX.DATE

Treadmill Stress Test

Other Heart TestsIdentify:

EMG/Electrodiagnostic Studies

X-ray/CAT ScanPart of Body:

MRIPart of Body:

Myelogram:

Breathing Tests:

MMPI

Other:

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FAMILY, HOUSING AND INCOME:

List all children who were under 18 (or under 19 and st ill in high schoolor d isabled adult children) at any t ime after the alleged onset date. Identifycustod ian.

How many people are in your household? ______________

*Identify these as issues on Analysis form.

CHILDREN'S NAMES RELATIONSHIP DOB CUSTODIAN

Monthly Income: CLAIMANT SPOUSE

*Employment after onsetfrom to

*Unemployment compensation after onsetfrom to

Welfare: Type: AFDC GA

Food Stamps:

V.A. benefits:Type: Service connected; non-serviceconnected:

Worker's Compensation after onsetfrom to

Loans:

Investments:

Disability Insurance: (Enter name andaddress of LTD carrier on Analysis form.)

Pension Benefits (company):

SSI (Especially Spouse SSI):

Social Security Disability/Retirement:

TOTAL: Family:

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Place of birth: ___________________________Resided in state all life/since ________________________

A U.S. cit izen. Not a U.S. cit izen.

Resided in U.S. all life/since: __________________________

Immigrat ion Status: __________________________________________

DAILY ACTIVITIES:

What floor is bedroom on? Trouble with stairs? __ Yes __ No

Which is worse, going up stairs or down? __ Up __ Down, Rise: __ a.m. Retire: __ p.m.

Do you nap during the day? __ Yes __ NoWhere do you nap?_________________

How many t imes? _______________________________How long? _____________________________

Do you have rest periods during the day? ___ Yes ___ NoWhere do you rest? _________________

How many t imes? ________________________________How long? _______________________________

Do you have a part icular chair, couch, etc. that is most comfortable?Describe: ___________________________________________________

______________________________________________________________________________________________________________________________

Summary of typical day: ______________________________________________________________________________________________________________________________________________________________________

Do you attend religious services? Yes NoHow often? ____________________________________

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Are you act ive in any groups, clubs, etc.? Yes NoDescribe: ___________________________________________________

______________________________________________________________________________________________________________________________

Are you involved in any volunteer work? Yes NoDescribe: ___________________________________________________

______________________________________________________________________________________________________________________________

Present hobbies: ____________________________________________________________________________________________________________

Former hobbies that you can no longer do: _____________________________________________________________________________________

PHYSICAL ASSESSMENT:

Rank sitt ing, stand ing, walking from easiest to hardest:Easiest: ____________________Hardest: ____________________

Assuming that everyone, even the most d isabled people, can do somesort of work, describe what you think you can do: ___________________________________________________________________________________________________________________________________________________

If pain is involved, how often is your experience of pain severe enough tointerfere with attention and concentrat ion?

Never Seldom Often Frequently Constantly

To what degree does it interfere?

Would prevent performance of simplest tasks.

Would only prevent performance of more complicatedtasks such as those involved in semi-skilled work.

Would only prevent performance of very complicatedtasks such as those involved in skilled work.

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Describe how these environmental factors impair act ivit ies and identifyhazards to be avoided: ___________________________________________________________________________________________________________

ENVIRONMENTALRESTRICTIONS:

NO RESTRICTION

AVOIDCONCENTRATED

EXPOSURE

AVOID EVEN MODERATEEXPOSURE

AVOID ALLEXPOSURE

Extreme cold

Extreme heat

Wetness

High humidity

Noise

Chemicals

Solvents/cleaners

Soldering fluxes

Cigarette smoke

Perfumes

Fumes, odors, dusts,gases

List other irritants orallergens

Hazards (machinery,heights, etc.)

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MENTAL RESIDUAL FUNCTIONAL CAPACITY

I. MENTAL ABILITIES ANDAPTITUDES NEEDED TODO UNSKILLED WORK

Unlimitedor VeryGood

Limited butsatisfactory

Seriouslylimited, but

notprecluded

Unable tomeet

competitivestandards

No usefulability tofunction

Remember work-likeprocedures

Understand and remember veryshort and simple instructions

Carry out very short and simpleinstructions

Maintain attention for two hoursegment

Maintain regular attendance and bepunctual within customary, usuallystrict tolerances

Sustain an ordinary routine withoutspecial supervision

Work in coordination with or prox-imity to others without being undu-ly distracted

Make simple work-relateddecisions

Complete a normal workday andworkweek without interruptions frompsychologically based symptoms

Perform at a consistent pace with-out an unreasonable number andlength of rest periods

Ask simple questions or requestassistance

Accept instructions and respondappropriately to criticism fromsupervisors

Get along with co-workers or peerswithout unduly distracting them orexhibiting behavioral extremes

Respond appropriately to changesin a routine work setting

Deal with normal work stress

Be aware of normal hazards andtake appropriate precautions

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Explain limitations falling in the three most limited categories (identifiedby bold type):

MEETING THE MENTAL LISTING - THE B CRITERIA

* If within one year client had more than three episodes of decompen-sat ion of shorter durat ion than two weeks or less frequent episodes ofdecompensation of longer durat ion than two weeks, state the dates of eachepisode of decompensation:

________________________________________________________________

If at List ing level (2 Marked or 1 Extreme limitat ion), ind icate whichList ing is met and describe why you think client meets List ing:

II. MENTAL ABILITIES ANDAPTITUDES NEEDED TO DOSEMISKILLED AND SKILLEDWORK

Unlimitedor VeryGood

Limited butsatisfactory

Seriouslylimited, but

notprecluded

Unable tomeet

competitivestandards

No usefulability tofunction

Understand and remember detailedinstructions

Carry out detailed instructions

Set realistic goals or make plansindependently of others

Deal with stress of semiskilled andskilled work

Restriction of activities of dailyliving

None Mild__

Moderate__

Marked__

Extreme__

Difficulties in maintaining socialfunctioning

None Mild__

Moderate__

Marked__

Extreme__

Deficiencies of concentration,persistence or pace

None Mild__

Moderate__

Marked__

Extreme__

Repeated episodes of decompensa-tion within 12 month period, each ofat least two weeks duration*

None__

One or Two__

Three__

Four or More__

FUNCTIONAL LIMITATION

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LITIGATION AND OTHER DETAILS (Include Attorney’s Name, Address& Telephone)

WORKER’S COMPENSATION: __________________________________________________________________________________________________

INSURANCE AND PENSION: _________________________________________________________________________________________________

OTHER CLAIMS FOR BENEFITS: _____________________________________________________________________________________________

POTENTIAL WITNESSES

ATTORNEY’S NOTES

Best ind icat ions of inability to work:* __________________________________________________________________________________________

Potential problems with case* __________________________________________________________________________________________________

*Summarize issues on Analysis form.

OBSERVATIONS

CHECK ITEM TO INDICATE DIFFICULTY WAS OBSERVED

Describe d ifficulty with checked item(s):__________________________________________________________________________________________

NAME TELEPHONE NUMBER AREA OF TESTIMONY

__ Reading __ Hearing __ Using Hands __ Walking

__ Writing __ Speaking __ Breathing __ Sitting

__ Answering __ Understanding __ Seeing __ Rising

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Describe posture: _____________________________________________________________________________________________________________

Describe unusual appearance, behavior or observed d ifficulty not notedelsewhere: ______________________________________________________________________________________________________________________

Assist ive devices: ___________________________________________________________________________________________________________

GENERAL APPEARANCE

§4:04 Form: Attorney’s Analysis of Your Case

Name: ______________________________ DOB: __________________

Theory: ____________________________________________________________________________________________________________________

Med-Voc Rule: ________ List ings §_________ Alleged Onset: _________DLI: ___________

Issues: ____________________________________________________________________________________________________________________________________________________________________________________

Date Last Worked: ____________ Age today: ________ Age at onset: ________

• Past 15 years or 15 years before date last insured, if earlier. * Enter C for customary, E for easiest job.

Unable to do easiest job because: ______________________________________________________________________________________________

Limited to: less than sedentary alt sit/stand sedentarylight med ium

Skin: Deformities:

Body build: Hand calluses:

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Mental limitat ions: _____________________________________Work skills: ______________________

Highest Grade Completed: _______Vocational Training: _______________________________________

Check here if abilit ies appear less than level of schooling wouldind icate.

Summary of Physical Residual Functional Capacity

⌧ _________________________________ says that s/he can walkabout ______ blocks before stopping.

⌧ S/he can sit for about ______ minutes at one t ime and stand forabout ______ minutes at one t ime.

⌧ Out of an 8-hour working day, s/he says s/he can sit for a total of_____ hours and stand/walk for a total of ______ hours.S/he needs to walk around approximately every ______ minutes forabout ______ minutes.S/he needs a job that permits shift ing posit ions at will.Because of ___________________________________________________________________________________________________________________________________________________________s/he may need to take unscheduled breaks [to lie down] during an8-hour working day. S/he expects this to happen _______________;and s/he may need to rest ___________ minutes (on average)before returning to work.If s/he had a sedentary job, because of _______________________s/he says s/he would need to elevate his/her legs about ______% ofthe t ime during an 8-hour working day. S/he needs to elevatehis/her legs about hip / heart ______ high.S/he needs a cane to walk because of _____________________________________________________________________________________________________________________________________.

⌧ S/he can occasionally lift and carry _____ lbs. and frequently lift andcarry _____ lbs.S/he says that because of _______________________________________________________________________________________s/he has significant limitat ions in reaching, handling, and fingering.

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S/he says that s/he can __________________________________________________________________________________________


S/he says that s/he has the following environmental limitat ions:__________________________________________________________________________________________________________________S/he says that her/his symptoms are severe enough to interferewith attention and concentrat ion so that s/he would be “off task” atwork 5% / 10% / 15% / 20% / 25% or more / of thetime.S/he says that as a result of his/her impairments s/he has a (moder-ate) (marked) (severe) limitat ion in dealing with work stress.Because of bad days, s/he says that if s/he had a full-t ime job s/heexpects that s/he would miss work about/more than _____ t imes amonth.

VISION


S/he is incapable of avoid ing ord inary hazards in the workplace,such as boxes on the floor, doors ajar, approaching people or vehi-cles.S/he has d ifficulty walking up or down stairs because of his/hervision. S/he says s/he cannot work with small objects such as thoseinvolved in doing sedentary work.S/he can/cannot work with large objects. Other: __________________________________________________________________________________________________________

Flag to work up for possible on-the-record decision. Impression:________________________________________________________

Request postponement of hearing scheduled for ________________with ALJ ___________________

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OTHER THINGS TO DO

________________________________________________________________________________________________________________________________________________________________________________________________

THINGS OUR CLIENT WILL SEND US

________________________________________________________________________________________________________________________________________________________________________________________________

§4:05 Onset Date of Your Disabil ity

Your attorney will want to identify the onset date for your disabili-ty. If you have already applied for disability benefits, your attorney willwant to know how the onset date for your disability was selected. Wasit your idea or was it the idea of someone at the Social Security office?Once you understand what it means to be disabled, you may have sec-ond thoughts about the onset date.

What you want to do is push the onset date back as far as possible.An earlier onset date could result in more back benefits. For example, ifyour onset date was 18 months before the date of your application, youwill pick up 12 full months of retroactive Social Security disability ben-efits—which are all the months of back benefits available unless it’s pos-sible to reopen an earlier application. See §4:07.

As a rule, it is beneficial to be found disabled based on an onset dateearlier than 18 months before the date of your application because itusually increases the amount of your monthly benefits. Some caution isappropriate, though, because in some cases an earlier onset date actual-ly decreases the monthly benefit amount. This tends to happen withyounger workers whose earnings after the earlier onset date are rela-tively high compared to their earnings in prior years.

Typically, but not always, the onset date is the date you stoppedworking. In establishing an onset date, your attorney should always

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consider the possibility that your last job was not substantial gainfulactivity or was an unsuccessful work attempt. If work was not substan-tial gainful activity (see §1:08) or was an unsuccessful work attempt (see§4:06), you may be able to push the onset date back to the time beforeyou did such work.

To push the onset date back to a time before you stopped work-ing, as a rule, you will need to show that any work after onset of yourdisability:

• Was not substantial work activity;• Was not gainful work activity after deducting impairment relat-

ed work expenses and averaging earnings;• Was done under special conditions;• Was subsidized; or• Was an unsuccessful work attempt.

§4:06 Unsuccessful Work Attempts

Work lasting up to six months that you had to stop because of animpairment may qualify as an unsuccessful work attempt. Earningsduring unsuccessful work attempts will not be considered in determin-ing whether or not work is substantial gainful activity (SGA). If your lastemployment qualifies as an unsuccessful work attempt, your onset datemay be moved back to a point before the unsuccessful work effort.

Break in Previous WorkAn unsuccessful work attempt must be preceded by a break in

your previous work. This requirement may be met if, because of theimpairment:

• You are out of work for 30 consecutive days (or perhaps a fewdays less if the subsequent work attempt is brief and clearly notsuccessful because of your impairment); or

• You were forced to change to another type of work or anotheremployer; or

• Your work was reduced so much that it no longer constitutedsubstantial gainful activity (SGA).

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You do not have to be working before an unsuccessful work attemptin order to qualify. An interruption in work activity could also occurwhen, before the onset of your impairment, you discontinued (or limit-ed) your work for other reasons, such as retirement, or never engagedin work activity.

Once this threshold requirement is met, different rules apply forunsuccessful work attempts lasting up to three months and those last-ing from three to six months.

Work Attempts of Three Months or LessFor work attempts of three months or less, the work must end (or be

reduced to the non-SGA level) in either of two ways. First, work mayend directly because of the impairment. For example, a claimantexplains, “Because of my back problem, I just couldn’t do the job any-more.” Second, work cessation may occur indirectly because of theimpairment if special conditions related to the impairment that areessential to the further performance of work are removed.

Special conditions exist, for example, when a claimant receives assis-tance from other employees in order to do a job. If, for one reason oranother, other employees no longer are available to help the claimant dothe job, the special conditions related to the impairment (help from otheremployees) would be removed. Thus, the claimant must quit work.

Work Attempts Between Three and Six MonthsTo qualify, work attempts between three and six months must end

the same way the shorter ones do, either directly or indirectly becauseof the impairment, as described above. But, in addition, one of the fol-lowing requirements must also be present:

• You must have had frequent absences due to the impairment;• Your work must have been unsatisfactory due to the impairment;• Your work must have been done during a period of temporary

remission of the impairment; or• Your work must have been done under special conditions.

Specific examples of “special conditions” include any accommoda-tion of the impairment, or an unusual job opportunity such as a shel-

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tered workshop or job made available for an altruistic reason, whetherby a family member or anyone else.

SGA Lasting More Than Six MonthsWork that constitutes substantial gainful activity lasting more than

six months cannot qualify as an unsuccessful work attempt no matterwhy it ended. Nevertheless, you could have a string of unsuccessfulwork attempts spread over a period of time much longer than sixmonths. If you were ever off work for 30 days, changed to an easier job(either with the same employer or a different employer), or had a peri-od of time where your work was at less than SGA level, your attorneywill want to examine your work efforts after this time to determine ifthey can be characterized as unsuccessful work attempts.

Dates of Work Attempts The SSA expects a very precise application of the three and six-

month time limits. You are going to need the exact dates of your workattempts. It may be necessary to contact your employers for this infor-mation, as well as for the reasons any work attempt ended. The SSAdoes not rely solely on information from a claimant, but instead seeksconfirmation from the employer or even from a doctor “or other med-ical source” who could state “whether, in his or her opinion or accord-ing to the records, your work discontinuance or reduction was due toyour impairment.”

§4:07 Prior Appl icat ions

Overcoming a Previous DenialYou attorney should be sure to find out about any earlier applica-

tions for disability benefits that you may have made. Often the earlierdenial decisions can help your attorney design a winning case, possiblyeven a winning case that includes past due benefits paid under the firstapplication.

If you previously submitted an unsuccessful application, your attor-ney will need to address the issues created by that earlier application.

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Although under SSA’s general policy the earlier denial is not considered“evidence” that must be rebutted, most ALJs treat it as a factor for con-sideration; and ALJs often follow the earlier decision. Thus, subsequentapplications and hearings often yield similar results. Although an ALJcan and sometimes does come to a different conclusion than that arrivedat in the earlier denial, even when there is no new evidence, your attor-ney’s job is to answer this usually unstated question: why should theresult be any different this time around?

Depending on the facts, a prior finding may make it easier or moredifficult for you to be found disabled on a new application. It may beeasier, for example, if you have moved into higher age category. It maybe more difficult, for example, if you haven’t and there is no new med-ical evidence demonstrating that the prior finding of your RFC (whatyou are still capable of doing) is wrong.

Reopening an Earl ier Appl icationIt may be possible for your attorney to reopen an earlier application,

which will lead to significant additional past-due benefits. You mayrequest reopening of a Social Security disability or SSI case for any rea-son within 12 months of the initial determination. For good cause youmay request reopening within four years of an initial denial in a SocialSecurity disability case, and within two years in an SSI case. The stan-dards for good cause are the same for both programs. Good causeincludes “new and material evidence” and that the “evidence that wasconsidered in making the determination . . . clearly shows on its facethat an error was made.”

The time limits for reopening run from the date of the initial deter-mination, that is, the initial denial. Your current application, if it con-tains the same alleged onset date as an earlier application, can be con-strued as a timely request to reopen the earlier application.

There are also situations where no time limit applies. For example,an application may be reopened at any time to correct “an error thatappears on the face of the evidence.”

No time limit for reopening applies in cases involving claimantswho lacked the mental capacity to understand the procedures for

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appealing an adverse administrative action. This rule applies whenthere was no one legally responsible for prosecuting the claim such as aparent of a claimant who is a minor, legal guardian, attorney or otherrepresentative. Regardless of how much time has passed from the timeof the prior administrative action, the case can be reopened if it is estab-lished that at the time of the prior administrative action the claimantlacked the mental capacity to understand the procedures for appealing.The adjudicator must consider:

• Inability to read or write.• Lack of facility with the English language.• Limited education.• Any mental or physical condition that limits the claimant’s abili-

ty to do things for himself or herself.

Adjudicators are instructed to resolve any reasonable doubt in favorof the claimant.

§4:08 Receipt of Unemployment Compensat ionBenef its

If the onset date in your application for disability benefits is the dateyou were laid off from work, this may also be the date you started get-ting unemployment compensation (UC) benefits and telling the UC peo-ple you were ready, willing, and able to work. Because of the apparentconflict between alleging that you are entitled to disability benefits fromone program and telling another program that you can work, it is hard,though not necessarily impossible, to claim benefits from both pro-grams. Your attorney may discuss with you whether a later onset datewould be more appropriate.

But before changing the alleged onset date, your attorney will needto understand the situation surrounding your layoff, your limitations,and the UC system in your state. Your attorney should ask you how thealleged onset date was determined. Was it your idea or did an SSAclaims representative suggest using the last day of work? Because ALJshave widely divergent views about the receipt of UC benefits duringmonths that a claimant claims to be disabled under the Social Securitydisability program, it is also useful for your attorney to try to find outthe ALJ’s position on this issue.

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In some cases, there is no conflict between receipt of unemploymentcompensation and an application for Social Security disability benefits.For example, a claimant who is capable of only light work and who isage 55 or older may legitimately receive unemployment compensationbenefits, and be found disabled using rules from the Medical-Vocation-al Guidelines.

Even though in most situations there is an apparent inconsistencybetween receipt of unemployment compensation and a claim for SocialSecurity disability benefits that covers the same period, it is sometimespossible to argue that even though you would have attempted workduring the time you were receiving unemployment compensation ben-efits (which makes receipt of unemployment compensation benefitslegitimate), in retrospect it appears that you would not have been ableto sustain work (which provides the basis for the disability claim).

For many judges, the fact that you were laid off because of lack ofwork or a plant closing, etc. (rather than being terminated because ofinability to do the job) is a bigger problem than receipt of unemploy-ment compensation itself. Some ALJs shrug at receipt of unemploymentcompensation, viewing it from a “person’s got to live” perspective.These ALJs do not even ask about receipt of UC benefits at the hearing,though they are likely aware of it because SSA has access to UC pay-ment information, which usually appears in a claimant’s hearing exhib-it file. Other ALJs will ask you to amend the alleged onset date to theday after you last received unemployment compensation benefits.

Although there is no law that says you cannot receive UC and SocialSecurity disability benefits for the same period, some ALJs, who regardreceipt of both benefits for the same period as double dipping, simplywill not find you disabled during the time you received UC benefits, butthey will find you disabled the month after UC stops. Other ALJs, whomay regard receipt of UC benefits as proof you could work during thetime you were receiving UC benefits, expect an amended alleged onsetdate to be based on medical worsening, not on when UC stopped.

Courts generally view receipt of unemployment compensation asinconsistent with a claim for disability benefits but they do not regard itas conclusive proof that a claimant is not disabled.

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§4:09 Educat ing You About Disabil ity Law

At your initial interview, your attorney should explain the peculiarway SSA looks at disability—the hypothetical approach. The issue isnever whether you can get a job. Rather, the issue is whether you arecapable of performing a job.

Claimants often think that proof of inability to get a job helps theircase. Some claimants have even been known to apply for jobs so thatthey can report to the ALJ: “See, I’m disabled; no one will hire me.” Infact, many ALJs view the very fact that a claimant applied for a job as anadmission that he or she is capable of doing the job. The ALJ’s reason-ing is: “Why would anyone apply for a job if that person is not capableof doing the job?” There is a difference between “hireability” and “capa-bility” that your attorney should make sure you understand before con-cluding the initial interview.

Some claimants have an understandable tendency to exaggeratetheir impairments. They may have heard that they have to prove thatthey are “permanently and totally disabled.” Your attorney should besure to dispel this myth. Your disability does not have to be “perma-nent;” it only has to last 12 months. And total disability doesn’t meanbedridden. Even those who must prove inability to do a full range ofsedentary work do not need to be bedridden to be found disabled.

Your attorney should be sure to explain the dangers of exaggeratingsymptoms when describing them to an ALJ—the ALJ simply won’tbelieve you. By the same token, you should not minimize your impair-ments. Your attorney should listen carefully as you describe the degreeof your impairments and point out to you when you may have exagger-ated or minimized your symptoms.

§4:10 Putt ing You at Ease About Hearing Process

At your initial meeting, your attorney should tell you what to expectat your hearing. Social Security hearings are informal. The ALJ is not anadversary, rough cross-examination is rare, and no one will try to trickyou. A disability hearing is nothing like any court hearings you haveever seen and certainly nothing like any television versions of courthearings you may have watched. Putting you at ease about the hearingis one of your attorney’s most important jobs.

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§4:11 Ident ifying Your Strengths and Weaknesses as aWitness

Your attorney will be observing you carefully and will probablymake some notes about you to identify your potential strengths andweaknesses as a witness. Your attorney will be interested in how youlook, walk, and sit, and how you answer questions. He or she will like-ly make a note of any special problems that need to be addressed at alater time when you meet to prepare to testify at the hearing.

§4:12 Ident ifying Other Potent ial Witnesses

Your attorney will ask you who might make a good witness to tes-tify at your hearing. At the least, your attorney will want you to startthinking about this issue.

§4:13 Keeping a Daily Diary

Your attorney may ask you to consider keeping a daily diary. Formany claimants keeping a daily diary until the time of the hearing isexcellent preparation for hearing testimony. You can simply jot downyour daily symptoms in a notebook.

If you have an episodic impairment, such as seizures, headaches, orgood and bad days, a diary helps quantify your problems so that youwill be able to testify as to how often they occur. Sometimes a monthlywall calendar can be used to record bad days—days that you would notbe going to work if you had a job. When more information is necessary,you attorney may ask you to complete a form. A sample monthlyheadache diary appears at §4:16.

Whether or not your attorney decides to use the diary as evidence,it will help you and your attorney clarify issues and prepare for testimo-ny at your hearing.

§4:14 Things for Your Attorney to Do

By the end of your initial interview, your attorney will probablyhave a good idea of what medical or vocational records to order, doc-tor’s reports to request, evaluations to be performed, issues to develop,witnesses to contact, etc. For an idea of the tasks you attorney will needto take to begin preparing your case, see §4:15.

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§4:15 Form: Attorney’s to-Do Checkl ist

Client’s Name: ________________________ Date: __________________

Letter to Local Office:

New Applicat ion Letter

Cover Letter (in a pend ing case) With:

Request for Reconsiderat ion

Request for Hearing

Disability Report—Appeal

Signed Releases

Appointment of Representat ive Form

Attorney or Client Fee Agreement

Direct Payment of Authorized Fees FormSSA-1695

cc to Office of Disability Adjud icat ion and Review

cc to Client With Fee Agreement

cc to Disability Determination Bureau WithEnclosures

Re-Open Prior Applicat ion

Request Local Hearing

Appealing Onset Date Only

Opening Letter to Client

Thank You Letter to Referral Source

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Letter to Client With Diary:

Seizure Diary

Headache Diary

MS Diary

Other: ____________________

Letter to Disability Determination Bureau: ¨ Now ¨Send in 30 Days

Request Med ical CE

Request Psych CE

Request State Agency RFCs (both physical andmental)

Request State Agency “Electronic Worksheet”and/or Rationale for Denying Claim

Supply Add it ional Med ical Records

a.

b.

c.

Supply Photos

Other: __________________

Letter to Local Office Request ing eDib File (CD)

Letter to Office of Disability Adjud icat ion andReview

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Request DISCO DIB Earnings Record

National Directory New Hire, Wage andUnemployment Report for the Following Years:__________________________

Detailed Earning Report: _____________ toPresent

Other: ___________________________________

Letter to Former Employer (__________________)Request ing Confirmation of Last Day of Work

Letter to Former Employer Request ing PersonnelFile (specify port ion or specific documents)

Letter to Med ical Providers Request ing Records:

a. __________________ covering__________________

b. __________________ covering__________________

c. __________________ covering__________________

d. __________________ covering__________________

Letter to Vocational Rehabilitat ion AgencyRequest ing Copy of File

Run Client Through Legal Database

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§4:16 Form: Monthly Headache Diary

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AFTERWORD

If you take away just one lesson from this book, it is that a skilledand experienced disability attorney can materially improve your oddsof success … especially after initial denial of your claim.

The disability evaluation process is complex, and not based on com-mon sense. Without an understanding of the rules and regulations gov-erning disability determinations, you are at a big disadvantage.

If you would like me to evaluate your Social Security disabilityclaim and possibly assist you, my contact information is:

Daniel A. Bridgman

BRIDGMAN LAW OFFICES(704) 815-6055 or (888) 632-9912

www.charlottedisability.com

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Documents

1 ebook are you likely to qualify