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PPatel legal writing sample
 

PPatel legal writing sample

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My current legal writing sample. A much more formal version of what was submitted to court, but formatted as a more traditional legal brief sample.

My current legal writing sample. A much more formal version of what was submitted to court, but formatted as a more traditional legal brief sample.

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    PPatel legal writing sample PPatel legal writing sample Document Transcript

    • UNITED STATES OFFICE OF DISABILITY ADJUDICATION AND REVIEW Oak Brook, Illinois August 2012 In the Matter of Ms. Xxxxxx X Memorandum in Support of Xxxxxx X's Claim for Social Security Disability Insurance (SSDI) Benefits Under Title II (Brief for ODAR Appeal Hearing) Purvi P. Patel, JD/MPH 2330 N. Spaulding, Apt 2a Chicago, IL 60647
    • TABLE OF CONTENTS TABLE OF AUTHORITIES..…………………………………………………………………….3 SUMMARY OF ARGUMENTS………………………………………………………………….4 FACTS……………………….……………………………………………………………………5 Impairment of Gross and Fine Motor Abilities………………………………………….5 Residual Cognitive Impairments…….…………………………..………………………6 Residual Functional Capacity………………………………….………………………..7 ANALYSIS………………………………..………………………………………………………8 I. Ms. X Meets Listing 11.04 for Central Nervous System Vascular Accident at Step Three of Sequential Disability Evaluation……………………………………………8 A. Ms. X meets Listing 11.04(A) for Central Nervous System Vascular Accident because deficits in spoken language comprehension, spoken language expression, and memory deficits comprise severe motor aphasia that impair her ability to work……………………………………………………………………………….8 B. Ms. X meets Listing 11.04(B) for Central Nervous System Vascular Accident because significant and persistent disorganization of motor function in at least two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station………………………………………………………………….9 II. Ms. X’s fails Sequential Evaluation at Steps Four and Five because her Residual Functional Capacity (RFC) Precludes Employment in Positions she has Held in the Past, and New Positions Requiring Even Simple Unskilled Work..…..………10 A. Ms. X fails the SSA disability analysis at Step Four because her Residual Functional Capacity does not allow her to perform her Past Relevant Work……10 B. Ms. X fails the SSA disability analysis at Step Five because her Residual Functional Capacity precludes the performance of even simple unskilled work……………………..……………………………………………………….11 1. Restrictions in exertional capacity….…………………………………...12 a) Lifting/carrying and pushing/pulling…………..…………………….12 b) Standing and walking………………………………………………...12 2. Restrictions in nonexertional capacity…………………………………..13 a) Manipulative limitations…………………………………………….13 b) Mental limitations…………………………………………………...13 CONCLUSION…………………………………………………………………………………..14 2
    • TABLE OF AUTHORITIES 20 C.F.R. §404.1520 (2012)…………………………………………………………………..8, 10 20 C.F.R. §404.1545 (2012)………………………………………………………………………8 20 C.F.R. §404.1560 (2012)……………………………………………………………………..10 Disability Evaluation Under Social Security (Adult Listing 11.04), SSA Pub. No. 64-039 (September 2008)……………………………………………………………………………….8, 9 Social Security Ruling 85-15, Titles II and XVI: Capability to do Other Work – The Medical- Vocational Rules as a Framework for Evaluating Solely Nonexertional Impairments. (August 20, 1980)…………………………………………………………………………………………13 Social Security Ruling 96.9p, Policy Interpretation Ruling Titles II and XVI: Determining Capability to of other work – Implications of a Residual Functional Capacity for less than Full Range of Sedentary Work. (July 2, 1996)…………………………………………………….11-13 U.S. Dept of Labor, Dictionary of Occupational Titles (4th Ed.)……………………………10, 11 3
    • UNITED STATES OFFICE OF DISABILITY ADJUDICATION AND REVIEW Oak Brook, Illinois In the Matter of Ms. Xxxxxx X SSN: xxx-xx-xxxx By ERE Month xx , 2012 Memorandum in Support of Xxxxxx X's Claim for Social Security Disability Insurance (SSDI) Benefits Under Title II Please consider this prehearing statement filed in support of Ms. Xxxxxx X’s request for SSDI disability benefits. Relevant evidence has been submitted to the court and exhibited, as referenced in this brief. At this time, we also submit to the court a Physical Therapy Assessment from ______ ______ , dated _____ __, 2012, to be submitted on the day of the hearing as Exhibit 15F. Ms. X applied for SSDI adult disability benefits on March xx, 2011. In that application, she alleged that she became disabled as of February 10, 2011. (Exhibit 2D, p. 1) By this statement we amend the onset date to the date of application, March xx, 2011. SUMMARY OF ARGUMENTS At issue is whether Ms. X’s medically severe impairments resulting from Central Nervous System Cardiovascular Accident (CVA), or stroke, satisfy the Social Security Administration (SSA) adult disability standard. . Ι. Ms. X meets both parts A and B SSA Adult Listing 11.04 for Central Nervous System Vascular Accident (CVA) because, more than three months post-CVA, she still exhibits both sensory aphasia resulting in ineffective speech and communication, as well as significant and persistent disorganization of motor function in two extremities. She meets Listing 11.04A because the record shows persistent deficits in spoken language comprehension, spoken language expression, and memory deficits comprising severe motor aphasia that impair her ability to work. Ms. X Meets Listing 11.04B because she continues to exhibit significant and persistent disorganization of motor function in at least two extremities, specifically her right arm and right leg, resulting in sustained disturbance of gross and dexterous movements, or gait and station. ΙΙ. Alternatively, Ms. X’s Residual Functional Capacity precludes employment in positions she has held in the past, and precludes the performance of even simple unskilled work, thereby failing the Social Security Administration’s (SSA) sequential disability 4
    • evaluation at both Step Four and Step Five. Ms. X fails the SSA disability analysis at Step Four because her continued impairments prohibit her from performing her past relevant work as a hairstylist, home health aid, or file clerk. Ms. X fails the SSA disability analysis at Step Five because her Residual Functional Capacity would preclude the performance of even simple unskilled work, due to restrictions in both exertional and nonexertional capacity. Ms. X shows functional limitations of exertional capacity in areas of lifting/carrying and pushing/pulling, as well as in standing and walking. Ms. X shows functional limitations of nonexertional capacity in areas of fine motor manipulation and mental functioning. FACTS Ms. X is currently ## years old. Ms. X completed a high school education, and has had no additional specialized job training, nor has she attended post-secondary trade or vocational school. (Exhibit 2E, p. 7). Ms. X has been employed as a hair stylist, home health care worker, and a file clerk at various times in the past. (Exhibits 2B, p. 1; 2E, p. 3; and 14F, p. 37). She moved from Tennessee to Illinois in early 2010, with plans to look for new work with the help of her brother. On February 10, 2011, Ms. X presented herself at ______ Medical Center due to dizziness, and some sense of confusion. (Exhibit 2F, p. 7). At this time, she was described as having slurred speech, right-sided weakness, right facial droop, and weakened motor abilities and sensory deficit in the right upper extremity. (Exhibits 1F, pp 12-13 and 2F, p. 7). She was subsequently admitted to the hospital for signs of stroke. (Exhibit 1F, pp. 12-15). On February 14, 2011, Ms. X was transferred to ______ Hospital for post cerebrovascular accident (CVA) inpatient rehabilitation using physical, occupational, and speech therapies. (Exhibit 2F, p. 7). At this time, she was noted as having “significant incoordination in her right hand and fingers.” Her right upper and right lower extremity strength was three-fifths of full functionality. Rehabilitation staff 's initial assessment concluded was that her stroke resulted in decreased coordination and dexterity of her right hand, as well as decreased balance. (Exhibit 2F, p. 8). She was noted as having deficits in mobility, self-care skills, speech, and expressive aphasia. (Exhibit 2F, p. 9). Impairment of Gross and Fine Motor Abilities (right-sided, dominant hand) Initial evaluations of Ms. X’s post-rehabilitation functioning indicated severe impairments in gross and fine motor skills in both her right arm and right leg. On September 20, 2011, seven months after her stroke, Ms. X was evaluated by Dr. ______ ______ at Madison Parkside Medical Center. Dr. _______ found that Ms. X’s was neither physically able to lift up to ten pounds, nor able to carry boxes up to ten pounds. (Exhibit 10F, p. 1). While noting that Ms. X is right-hand dominate, he found Ms. X unable to do activities that required her to reach over head with her right hand, and would only occasionally be able to do activities that required handling, pushing, or pulling with her right hand. (Exhibit 10F, p. 3). It was his opinion that Ms. X would be able to stand or walk only one hour without interruption, and one hour total in an eight hour work day. (Exhibit 10F, p. 2). He also noted that Ms. X would only be able to operate foot controls occasionally with her right foot. (Exhibit 10F, p. 3). In January 2012, eleven months after her stroke, Ms. X began treatment at ________ 5
    • Outpatient Facility in Chicago for issues related to her stroke. She had numerous follow-up appointments and evaluations at this facility from January through June of 2012, yet failed to make much progress in regaining functionality during that time period. An initial evaluation of Ms. X by Dr. ______ noted cervical spine tenderness, right arm neuropathy, pain during palpation of the entire arm right arm down to the fingertips, and residual right-sided weakness. (Exhibit 14F, pp. 3 & 23-24). Despite some minor improvements, these symptoms persisted over subsequent months. A follow-up visit at the ______ Outpatient Facility on May 7, 2012 noted decreased range of motion, decreased strength, increased pain, and decreased functional abilities. Noted functional limitations included dressing, transferring heavy objects in the kitchen, pushing a shopping cart, braiding hair, work as a home health aide, basketball, and jogging. (Exhibit 14F, p. 87). In subsequent visits in May 2012, the Ms. X noted stiffness/soreness in her right shoulder on multiple occasions, as well as fatigue with progression of weight with hip exercises. (Exhibit 14F, p. 10). During a follow-up visit on June 5, 2012, medical staff noted that Ms. X’s upper extremity continued to fatigue quickly with fine and gross motor activity after a period of approximately five minutes. Additionally, hand tremors and increased tone were observed after five minutes of activity. (Exhibit 14F, p. 181). Despite noticing that Ms. X's tolerance to activity had improved by June 12, 2012, medical staff noted that she was still experiencing short periods of dizziness when completing activities in stance. (Exhibit 14F, p. 181). Lastly, medical staff noted had difficulty with cutting and heavy lifting tasks during a final visit on June 14, 2012. (Exhibit 14F, p. 182). By August 2012, eighteen months after her stroke, Ms. X still exhibited several functional deficits, including right-sided weakness in the upper and lower extremities with decreased coordination, in addition to left lower extremity weakness and decreased balance. (Exhibit 15F, p. 1). She had developed an occasional right-sided toe drag and lateral sway toward to right, consistent with Ms. X’s own reports that she tripped frequently. Ms. X also still reported frequent dizziness, and had an observed tremor in her right hand. (Exhibit 15F, p. 1). As a result of these deficits, the clinician reported that functional limitations in daily activities included “several daily activities that require standing/walking to maintain functional independence,” such as dressing ambulating through the home safely, cooking, cleaning, and grocery shopping, in addition to activities that would require reaching overhead. (Exhibit 15F, p. 1). Residual Cognitive Impairments: Spoken Language Processing and Expression, Memory In April 2012, fourteen months after her stroke, Ms. X was prescribed a speech therapy treatment plan for aphasia and cognitive communication deficit by ______ ______ , Speech Pathologist at the _______ Outpatient Facility. During a cognitive communication/speech- language evaluation on April 18, 2012, Ms. X reported that her sisters did not understand her condition, and that her sisters often spoke or acted too quickly for her. (Exhibit 14F, p. 37). The speech pathologist noted that Ms. X still showed some limitations in spoken language comprehension related to vocational, avocational, and social activities. When asked to respond to details in verbally presented stimuli, Ms. X evidenced deficits in comprehension, with only 83% accuracy on tasks. (Exhibit 14F, pp. 38-39). When asked to name pictures in confrontation naming tasks, Ms. X named only 66% of pictures without support. (Exhibit 14F, p. 39). Based on these results, Ms. X was prescribed a speech therapy treatment plan. Ms, X was also tested for information processing and memory function, where she exhibited deficits that would impair her ability to function within a work environment. On the Ross Information Processing Assessment-Second Edition (RIPA-2) to evaluate cognitive- 6
    • communicative abilities, Ms. X occasionally required cues for processing complex information and planning complex future events. (Exhibit 14F, p. 40). In evaluating memory, clinicians stated that Ms. X “presents with mild cognitive communication characterized by memory deficits with increased processing time.” For example, Ms. X was still reporting difficulties remembering appointments as of April 2012. “Ms. X accurately responded to immediate memory tasks with only 60% accuracy, and only 80% of remote memory tasks were complete and accurate. Ms. X demonstrate[d] increased processing time during remote memory recall in 30% of opportunities.” (Exhibit 14F, p. 41). The speech pathologist determined that these breakdowns might occasionally interfere with Ms. X’s functioning in vocational, avocational, and social activities. (Exhibit 14F, p. 40). After her evaluation on April 18, 2012, Ms. X was given a rehabilitation diagnosis of Aphasia and Cognitive Communication deficit, based on “deficits in receptive language evidenced by decreased auditory comprehension of details in verbally presented information, deficits in expressive language evidenced by aphasic errors and circumlocutions in conversation and confrontation naming tasks, and deficits in immediate and remote memory skills.” The report noted that “functional limitations include participating in activities of daily living in a variety of settings including the occupational, community, and home environment.” (Exhibit 14F, p. 42). Residual Functional Capacity Throughout her course of post-stroke treatment and rehabilitation, Ms. X as exhibited numerous physical and cognitive functional limitations, limitations that continue to plague her at present. A review of the record shows that Ms. X’s residual functional capacity includes the following deficits: • Noticeable deficits in gross motor control, particularly with lifting and transferring heavy objects. (Exhibits 10F, p. 1 and 14F, pp. 87 & 181-182). • Limitations with the right arm in handling, reaching, and manipulating objects in motions such as cutting. (Exhibits 10F, p. 3; 14F, p. 182; and 15F, p1). • Regular pain, resulting from neuropathy in her right arm extending to the fingertips. (Exhibit 14F, p. 3). • Fatigues quickly after about five minutes of fine motor activity, inhibiting her abilities in tasks such as braiding hair. (Exhibit 14F, pp. 87 & 181). • Tremors in the right hand preclude arm-hand steadiness. (Exhibits 14F, p. 181 and 15F, p. 1). • Continued deficits in balance and lacks the inability to stand continuously for long periods of time. (Exhibits 10F, p. 2; 14F, p. 181; and 15F, p. 1). • A diagnosis of aphasia and deficits in oral expression, oral comprehension, processing complex information, and memory. (Exhibit 14F, pp. 37-42). Ms. X has not been employed since the onset of her disability. 7
    • ANALYSIS Adults seeking a disability determination are subject to a five step sequential evaluation process to determine if their impairments preclude their ability to work. 20 C.F.R. §404.1520 (2012). Step one considers any present work activity, and weather it qualifies as Substantial Gainful Activity (SGA). Step two considers whether and individual’s physical or mental impairments are severe and fulfill duration requirements. Step three considers whether the severity of an individual’s impairments fulfills or equals one of the social security adult disability listings. Step four considers whether an individual’s Residual Functional Capacity (RFC) prevents her from returning to past relevant work positions. Step five considers whether an individual’s RFC in addition to age, education, and work experience would allow her to adjust to other positions, even simple, unskilled work. 20 C.F.R. §404.1520 (2012). At step one, Ms. X has not worked during the pendency of this claim, nor has she worked since her stroke in February of 2011. At step two, Ms. X’s CVA and its impact on her functioning is severe, as evidenced by her extensive medical history and rehabilitation. At step three, Ms. X meets Adult Disability Listing 11.04 for central nervous system vascular accident (CVA) since, more than three months post-CVA, she still exhibits both motor aphasia resulting in ineffective speech and communication, as well as significant and persistent disorganization of motor function in her right arm and right leg, resulting in sustained disturbance of both gross and fine motor movements. Alternatively, Ms. X fails at steps four and five because her current RFC precludes her from fulfilling the employment duties for any positions that comprise her past relevant work experience or new positions requiring even simple unskilled work. I. Ms. X Meets Listing 11.04 for Central Nervous System Vascular Accident at Step Three of Sequential Disability Evaluation. At step three, Ms. X meets the SSA disability listing 11.04 for central nervous system vascular accident (CVA) if more than three months post-CVA, she still exhibits A) sensory or motor aphasia resulting in ineffective speech or communication, or B) significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station. Disability Evaluation Under Social Security, Adult listing 11.04. SSA Pub. No. 64-039 (September 2008). A. Ms. X Meets Listing 11.04(A) for Central Nervous System Vascular Accident because deficits in spoken language comprehension, spoken language expression, and memory deficits comprise severe motor aphasia that impair her ability to work. To qualify as disabled under adult listing 11.04(A), an individual must exhibit a partial or total loss of sensory or motor functioning of the ability to communicate verbally or using written words due to brain damage.1 These impairments must affect the individual’s ability to work. Disability Evaluation Under Social Security, Adult listing 11.04(A). SSA Pub. No. 64-039 (September 2008). Ms. X meets listing 11.04(A) because as of April 2012, fourteen months after her CVA, she still exhibited sensory aphasia resulting in ineffective speech and communication. (Exhibit 1 Farlex Free Dictionary, definition of ‘aphasia,’ http://medical-dictionary.thefreedictionary.com/aphasia (last accessed May 10, 2013). 8
    • 14F, p. 42). Specifically, Ms. X showed limitations in spoken language comprehension, spoken language expression, and cognitive-communicative abilities characterized by immediate and remote memory deficits. (Exhibit 14F, pp. 38-42). These limitations were all noted to relate to vocational, avocational, and social activities. (Exhibit 14F, pp. 38-40). She was given a rehabilitation diagnosis of Aphasia and Cognitive Communication deficit. (Exhibit 14F, p. 42). The evaluation from April 18, 2012 also noted that resulting functional limitations included the ability to complete activities of daily living in occupational, community, and home environments. (Exhibit 14F, p. 42). As a result of her verbal communication impairments, and their impact on her ability to complete activities of daily living in an occupational environment, Ms. X meets the requirements for SSA disability listing 11.04(A). B. Ms. X Meets Listing 11.04(B) for Central Nervous System Vascular Accident because of significant and persistent disorganization of motor function in her upper and lower right extremities, resulting in sustained disturbance of gross and dexterous movements, as well as gait and station. An individual meets listing 11.04(B) if more than three months post-CVA, she exhibits significant and persistent disorganization of motor function in at least two extremities, resulting in sustained disturbance of both gross and fine motor movements, or gait and station. Disability Evaluation Under Social Security, Adult listing 11.04(B). SSA Pub. No. 64-039 (September 2008). In addition to meeting Listing 11.04(A), Ms. X additionally and alternatively meets listing 11.04(B) because as of September 2011, seven months post-CVA, she was still exhibiting difficulty with gross motor skills in her right arm and right leg. She continued to show impairments in right arm functioning evidenced by an inability to lift or carry more than ten pounds, the inability to reach over her head, and a limited ability to complete tasks requiring handling, pushing, or pulling with her right arm. (Exhibit 10F, pp. 1 & 3). She also exhibited right leg impairments evidenced by her inability to operate foot controls with her right foot, or balance, crawl, or kneel. (Exhibit 10F, pp. 3-4). Ms. X could also not stand or walk for more than one hour without interruption, or in excess of one hour every work day. (Exhibit 10F, pp. 2- 3). Ms. X has continued to show signs of post-CVA right arm weakness and deficits in coordination, most recently evaluated in August 2012. (Exhibit 15F, p. 1). On multiple occasions in May, Ms. X reported right upper extremity stiffness and weakness, decreased range of motion, decreased strength, and pain down the length of her right arm down to the fingertips. (Exhibit 14F, pp. 24, 87, & 103). Ms. X continues to fatigue quickly (after five minutes) with both fine and gross motor activity, which also results in hand tremors and increased tone. (Exhibits 14F, p. 181 and 15F, p. 1). Resulting functional limitations include dressing, cooking, cleaning, lifting and transferring heavy objects, safely ambulating through the house, pushing a shopping cart, braiding hair, and cutting. (Exhibits 14F, pp. 87 & 182 and 15F, p. 1). Ms. X is right-hand dominant. (Exhibit 10F, p. 3). Ms. X also continues to demonstrate signs of right lower extremity weakness. She continues to show fatigue with progression of hip exercises, particularly with weight. (Exhibit 14F, p. 103). She retains a right-sided toe drag and trips frequently. (Exhibit 15F, p. 1). Additionally, Ms. X continues to show signs of balance deficits, and reports frequent dizziness. 9
    • (Exhibits 14F, p. 181 and 15F, p. 1). As a result, Ms. X is functionally limited in normal ambulation or completing activities in stance without episodes of dizziness. (Exhibit 14F, pp. 87 & 181). As a result of right-sided weakness in both her upper and lower extremities, and its effect on both gross and fine motor movements as well as gait and station, Ms. X meets the requirements for SSA disability listing 11.04(B). II. Ms. X’s fails Sequential Evaluation at Steps Four and Five because her Residual Functional Capacity (RFC) Precludes Employment in Positions she has Held in the Past, and New Positions Requiring Even Simple Unskilled Work. If Ms. X is determined as not meeting SSA Adult Disability Listing 11.04, she should alternatively be found disabled at steps four and five of the five-step sequential evaluation process in disability determination. She fails at step four because her existing Residual Functional Capacity precludes her from returning to past relevant work positions that she has held previously. Furthermore, she also fails the sequential evaluation at step five because her physical and cognitive limitations prevent her from performing even simple, unskilled work. A. Ms. X fails the SSA disability analysis at Step Four because her Residual Functional Capacity does not allow her to perform her Past Relevant Work. To be found not disabled at step four of the sequential evaluation, and individual’s Residual Functional Capacity must not impair her ability to return to past relevant work positions. 20 C.F.R. §404.1520 (2012). An individual’s Residual Functional Capacity is defined as the most activity an individual is able to do despite her mental and physical limitations. 20 C.F.R. §404.1545(a)(1) (2012). Past relevant work experience consists of work that she has done within the past 15 years that was Substantial Gainful Activity, and for a duration long enough to have learned to perform the job properly. 20 C.F.R. §404.1560(b)(1) (2012). At various points in the past, prior to moving to Illinois, Ms. X had worked as a hair stylist, homes health care worker, and a hotel clerk/housekeeper. (Exhibit 14F, p. 37). Ms. X fails the disability evaluation at step four because she no longer has the functional capabilities to perform any of her past jobs. The ability to cut, trim, and shape hair or hairpieces using clippers, scissors, trimmers, or razors is a core task of a hairstylist. Another core tasks includes the ability to as well as shampoo, rinse, condition, and dry hair and scalp or hairpieces. The position requires frequent reaching, handling, and fingering. The characteristics of arm-hand steadiness, finger dexterity, manual dexterity, and oral comprehension are considered very important for this position. Additionally, the characteristics of handling and moving objects, oral expression, information ordering, and speech clarity are considered important for this position. This position also requires almost continual standing, as well as the use of hands to handle, control, or feel objects, tools, or controls. U.S. Dept of Labor, Dictionary of Occupational Titles (4th Ed.) [Code 332.271-018, Hairdressers, Hairstylists, and Cosmetologists]. Ms. X exhibits functional limitations in handling, reaching, and manipulating objects with her right arm. She cannot perform motions such as cutting. (Exhibits 10F, p. 3; 14F, p. 182; and 15F, p. 1). She fatigues after five minutes of fine motor activity, inhibiting her abilities in tasks such as braiding hair. 10
    • (Exhibits 14F, pp. 87 & 181). Regular pain, resulting from neuropathy in her right arm, extends to the fingertips. (Exhibit 14F, p. 3). Therefore, Ms. X’s RFC precludes returning to work as a hairstylist. Core tasks for being a home health aide include helping patients move in and out of bed, baths, wheelchairs, or automobiles, changing bed linens, washing and ironing laundry, and cleaning patients’ quarters. The position requires frequent reaching and handling. Characteristics of oral expression and oral comprehension are considered very important for this position. Speech clarity, arm-hand steadiness, gross body coordination, and gross body equilibrium, are also very important characteristics for this position. Home health aides can expect to stand more than half the time. They also spend about half the time using their hands to handle, control, or feel objects, tools, or controls. U.S. Dept of Labor, Dictionary of Occupational Titles (4th Ed.) [Code 345.377-014. Home Health Aides]. Ms. X has noticeable deficits in gross motor control, particularly with lifting and transferring heavy objects. (Exhibits 10F, p. 1 and 14F, pp. 87 & 181-182). Continued deficits in balance impair her ability to stand continuously for long periods of time. (Exhibits 10F, p. 2; 14F, p. 181; and 15F, p. 1). She also exhibits deficits in oral expression, oral comprehension, processing complex information, and memory. (Exhibits 14F, pp. 37-42). Therefore, Ms. X’s RFC precludes returning to work as a home health aide. Core tasks for the position of a file clerk include typing, operating office machines, sorting mail, and placing materials into storage receptacles such as file cabinets, boxes, bins, or drawers according to classification and identification information. The position requires frequent reaching, handling and fingering. Additionally, abilities in oral comprehension and information ordering are considered very important for this position. Oral expression, handling and moving objects, finger dexterity, speech clarity, memorization, and arm-hand steadiness are also considered important for this position. File clerks can expect spend half of their time walking or running, making repetitive motions, and using their hands to handle, control, and feel objects, tools, and controls. U.S. Dept of Labor, Dictionary of Occupational Titles (4th Ed.) [Code 206.387-034, File Clerks]. As mentioned above, Ms. X’s aphasia impairs her oral expression, oral comprehension, processing complex information, and memory. (Exhibit 14F, pp. 37-42). She has difficulty handling and controlling objects with her right arm. (Exhibits 10F, p. 3 and 14F, p. 182). Tremors in her right hand also preclude arm-hand steadiness. (Exhibits 14F, p. 181 and 15F, p. 1). Therefore, Ms. X’s RFC precludes returning to work as a file clerk. Based on her current Residual Functional Capacity, Ms. X would not be able to hold any of the positions she has held in the past, and therefore fails the disability sequential evaluation at step four. B. Additionally, Ms. X fails the SSA disability analysis at Step Five because her Residual Functional Capacity Would Preclude the Performance of Even Simple Unskilled Work. An individual will be found disabled if, in addition to failing sequential evaluation at step four, she also fails at step five because her Residual Functional Capacity prevents her from performing even simple unskilled work. For simple unskilled work, if an individual can neither lift more than 10 pounds at a time nor occasionally lift or carry articles like docket files, ledgers, and small tools, she is evaluated only in her ability to perform full range of sedentary work. “Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties.” SSR 96-9p. In order to evaluate how 11
    • an individual’s RFC impacts the ability to engage in Substantial Gainful Activity in a full range of sedentary work, social security evaluates both the exertional and nonexertional capacity of the individual. SSR 96-9p. Exertional capacity refers to an individual's limitations and restrictions of physical strength and defines the individual's remaining ability to sit, stand, walk, lift, carry, push, and pull. Nonexertional capacity considers work-related limitations in mental abilities, vision, hearing, speech, climbing, balancing, stooping, kneeling, crouching, crawling, reaching, handling, fingering, and feeling. SSR 96-9p. Ms. X’s inability to lift more than ten pounds at a time and continued problems with her lower extremities including gross motor function, balance, and coordination would limit her to sedentary work. (Exhibits 10F, p. 1; 14F, pp. 181-182; and 15F, p. 1). Furthermore, Ms. X fails the sequential analysis at step five because her present conditions show significant impairments in both extertional and nonexertional capacities. 1. Restrictions in exertional capacity An individual with diminished exertional capacity shows impairments with 1) occasionally standing and walking, 2) sitting for long periods of time, 3) alternating between sitting and standing, or 4) use of a medically required hand-held assistive device. SSR 96-9p. Ms. X present condition shows limitations in exertional capacity with regards to lifting/carrying and pushing/pulling as well as standing and walking. a) Lifting/carrying and pushing/pulling An individual’s capacity to engage in Substantial Gainful Activity will be impaired “[i]f an individual is unable to lift ten pounds or occasionally lift and carry items like docket files, ledgers, and small tools throughout the workday.” SSR 96-9p. Ms. X’s post-CVA status has shown an inability to lift or carry more than ten pounds. (Exhibit 10F, p. 1). Even more recently, Ms. X continues to exhibit signs or right arm neuropathy through to the fingertips, and reports difficulty with heavy lifting tasks, or even pushing a grocery shopping cart. (Exhibit 14F, pp. 24 & 87). She can only occasionally do activities that require handling, pushing or pulling with her right arm, has also shown fatigue after short periods of gross motor activity. (Exhibits 10F, p. 3 and 14F, p. 181). She is therefore impaired in this category of exertional capacity. b) Standing and walking Restrictions in the ability to stand can be taken in to consideration as an exertional limitation because “[t]he full range of sedentary work requires that an individual be able to stand and walk for a total of approximately 2 hours during an 8-hour workday.” SSR 96-9p. Post stroke, Ms. X’s care provider reported that she would only be able to walk or stand one hour continuous, and one hour per work day. (Exhibit 10F, p. 2). From June-August 2012, Ms. X also reported experience short periods of dizziness, particularly when doing activities while standing. (Exhibits 14F, p. 181 and 15F, p. 1). Her physical therapy assessment noted a toe drag on her right side and a lateral sway toward the right that mad walking more difficult, in addition to impairments in balance. (Exhibit 15F, p. 1). She is therefore also impaired in the standing and walking category of exertional capacity. 12
    • 2. Restrictions in nonexertional capacity An individual with diminished nonexertional capacity shows impairments with 1) posture, 2) manipulation with the hands, 3) visual processing, 4) communication, 5) mental functioning, and 6) functioning within the physical work environment. SSR 96-9p. “Nonexertional limitations can affect the abilities to reach; to seize, hold, grasp, or turn an object (handle); to bend the legs alone (kneel); to bend the spine alone (stoop) or bend both the spine and legs (crouch).” Nonexertional capacity can also refer to fine movements of small objects. SSR 85-15. Ms. X lacks the nonexertional capacity for fine motor coordination (i.e bilateral manual dexterity) and cognitive functioning for sedentary work. a) Manipulative limitations Limitations in the ability to carry out a full range of sedentary work include manipulative impairments in bilateral manual dexterity. Specifically, ”[m]ost unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity. Fine movements of small objects require use of the fingers; e.g., to pick or pinch. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.” SSR 96-9p. Additionally, “loss of fine manual dexterity narrows the sedentary and light ranges of work much more than it does the medium, heavy, and very heavy ranges of work.” SSR 85-15. Limits in these skills would impair the ability to carry out sedentary work. Ms. X’s recent evaluations document her impairments with bilateral dexterity due to persistent right arm-hand weakness. Her right arm fatigues quickly, after about five minutes of fine motor movement. (Exhibit 14F, p. 181). She has exhibited difficulty with fine motor tasks such as cutting or braiding hair. (Exhibit 14F, pp. 87 & 182). Tremors have also been observed in her right hand on multiple occasions. (Exhibits 14F, p. 181 and 15F, p. 1). b) Mental limitations “A substantial loss of ability to meet any one of several basic work-related activities on a sustained basis (i.e., 8 hours a day, 5 days a week, or an equivalent work schedule), will substantially erode the unskilled sedentary occupational base and would justify a finding of disability.” SSR 96-9p. Examples of such limitations can including understanding, remembering, and carrying out simple instructions. SSR 96-9p. Ms. X’s CVA has impaired her mental functioning, particularly with spoken language comprehension. (Exhibit 14F, pp. 38-39 & 42). Ms. X particularly exhibits decreased comprehension of details in auditory information, with only 83% accuracy on tasks. (Exhibit 14F, pp. 39). Additionally, Ms. X exhibits limitations in both immediate and remote memory processing. She responds to immediate memory tasks with only 60% accuracy, and to remote memory tasks with only 80% accuracy. (Exhibit 14F, pp. 41). Lastly, with a diagnosis of aphasia, her ability to communicate verbally to others (i.e. verbal expression) is also impaired. (Exhibit 14F, p. 39). With significant restrictions in both exertional and non-exertional capacities, Ms. X’s residual functional capacity would be unable to perform even simple unskilled sedentary work. She fails sequential disability evaluation at both steps four and five and should therefore be determined disabled. 13
    • CONCLUSION Ms. X meets the adult disability requirements of the five-step sequential analysis for social security, in more ways than one. At step three, Ms. X meets both the (A) and (B) requirements for Adult Disability Listing 11.04 for central nervous system vascular accident (CVA), even though only one of the two is required for a finding of disability. Additionally, Ms. X fails at step four because her current Residual Functional Capacity (RFC) precludes her from fulfilling the employment duties of her past relevant work experiences as a hairstylist, home health aide, or file clerk. Lastly, she fails at step five because her RFC shows limitations in both her exertional and nonexertional capacity to perform well in a new sedentary position requiring only simple unskilled work, thus precluding her performing any Substantial Gainful Activity (SGA). For the reasons stated above, Ms. X should be found disabled as of her amended onset date of March 2, 2011. Respectfully submitted, s/ Purvi P. Patel Purvi P. Patel Attorney at Law 14