Practical Considerations onHandling a Social Security Disability Case Suzanne Villalón-Hinojosa www.texasdisabilityadvocates.com Social Security Disability 2011 November 18, 2011 New Orleans
Get the Medical Records• You (the claimant) must provide medical evidence. – 20 CFR § 404.1512(c)• We (SSA) will develop your complete medical history for at least the 12 months preceding the month in which you file your application. – 20 CFR § 404.1512(d)• A representative shall act with reasonable promptness to obtain the evidence that the claimant wants to submit. – 20 CFR § 404.1740(b)(1)• The ALJ should initiate development if additional evidence is needed. – HALLEX I-2-1-1
Recent/Current MEDICAL TREATMENT Name: Date: __________ Other Names Used (maiden, prior marriage, nickname):Most clients ______________________________________________________________________ 1. MAIN DOCTOR:______________________________________________will complete Address:____________________________________________________ ____________________________________________________ Phone:_____________________________________________________a simple form Medical Problem Treated:______________________________________ Date Last Seen:______________________________________________with provider 2. OTHER DOCTOR SEEN:____________________________________ Address:_______________________________________________ ____________________________________________________information , Phone:_____________________________________________________ Medical Problem Treated:______________________________________ Date Last Seen:______________________________________________especially at 3. OTHER DOCTOR SEEN:____________________________________ Address:____________________________________________________ ____________________________________________________the beginning Phone:_____________________________________________________ Medical Problem Treated:______________________________________of the case. Date Last Seen:______________________________________________ 4. LAST HOSPITALIZATION:__________________________________ Address:_________________________________________________ Date Admitted:___________________________________________ **LIST OTHER DOCTORS/HOSPITALS WITH CONTACT INFORMATION ON BACK**
Get a Medical Source Statement• We give more weight to opinions from treating source. – Treating sources: • Provide a detailed, longitudinal picture of your medical impairments • Bring a unique perspective to the medical evidence• We will give a treating source opinion controlling weight. – It is well supported – It is not inconsistent with the other evidence• The ALJ must consider each separate opinion in a MSS. – SSR 96-5p
Use terms that the VE understands in a MSSMental Capacities Lift, Carry, Bend, Stoop• No/mild loss: – No significant loss of ability in the • Rarely/None named activity; can sustain performance for > 2/3 of an 8-hour – No sustained/8hrs workday.• Moderate loss: • Occasionally – Some loss of ability in the named activity but still can sustain – <1/3 of 8 hrs performance for 1/3 to 2/3 of an 8- hour workday. • Frequently• Marked loss: – Substantial loss of ability in the named – 1/3-2/3 of 8 hrs activity and can sustain performance less than 1/3 of an 8-hour workday. • Constantly• Extreme loss: – Complete loss of ability in the named – >2/3 of 8 hrs activity; cannot sustain performance during an 8-hour workday.
Know your Judge• Find out the win/loss Full Name Office State Approval rate of your ALJ Vanderhoof, Alexandria Louisiana 35% Gary L – Disability Judges.com – Oregonlive.com Vanderhoof, Gary L Fort Smith Arkansas 35% Vanderhoof, San Antonio Texas 35% Gary L www.DisabilityJudges.com Total Fully PartiallyJudge Name Decisions Dispositions Favorable Favorable Approval Rate Unfavorable Denial Rate YearVANDERHOOF, 805 924 188 54 26% 563 61% 2005GARY LVANDERHOOF, 875 1,031 207 31 23% 637 62% 2006GARY LVANDERHOOF, 943 1,189 152 35 16% 756 64% 2007GARY LVANDERHOOF, 835 1,000 142 29 17% 664 66% 2008GARY L www.oregonlive.com/special/index.ssf/2008/12/social_security_database.html
Prepare your client for the hearing• Who will do what? – They will testify…not you. – The Judge will talk directly to your client – But you will argue and also ask questions – Your client should know what they might hear from the experts• Adverse evidence• Bottom-line: – no surprises
Step 4 is the new Step 2• The burden of proof rests with the claimant to establish that he is unable to perform his previous work. – Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987)• SSR 82-62 does not shift the burden of proof at Step 4.• Proposed new ruling will make it harder for the claimant to meet his/her burden and easier for an ALJ to deny a a claim at Step 4.
Carey v. Apfel 230 F.3d 131 (5th Cir. 2000)• Claimant should not be permitted to scan the record for implied or unexplained conflicts between the specific testimony of an expert witness and the voluminous provisions of the DOT and then present that conflict as reversible error, when the conflict was not deemed sufficient to merit adversarial development in the administrative hearing.
DOT vs. VE• Claimants and their representatives cannot be presumed to know instantly the precise reasoning levels and temperaments factors applicable to those jobs.• However, claimants have the opportunity to cross examine vocational experts, and they can test an experts opinion that there is no conflict with the DOT by routinely asking them to recite for the record the reasoning abilities and worker trait characteristics that the DOT attributes to each job that the vocational expert testifies that a hypothetical person with the same limitations as the claimant can still perform.• If any of the DOT job requirements appear contrary to the limitations posited by the administrative law judges hypothetical question, claimants can then develop their points through cross-examination. Veal v. SSA 618 F.Supp.2d 600 (E.D.Tex. May 21, 2009)
Comparing DOT data with the RFCDirect Conflict: Indirect Conflict:Reasoning levels Definition of Temperaments • D DIRECTING, controlling, or planning• 3 Apply commonsense understanding to carry activities of others. our instructions furnished in written, oral, or • R Performing REPETITIVE or short cycle diagrammatic form. Deal with problems involving several concrete variables in or from work standardized situations. • I INFLUENCING people in their opinions, attitudes, or judgments.• 2 Apply commonsense understanding to carry • V Performing a VARIETY of duties out detailed but uninvolved written or oral instructions. Deal with problems involving a few • E EXPRESSING personal feelings. concrete variables in or from standardized • A Working ALONE or apart in physical situations. isolation from others. • S Performing effectively under STRESS.• 1 Apply commonsense understanding to carry out simple one or two step instructions. Deal • T Attaining precise set limits, with standardized situations with occasional or TOLERANCES, and standards. no variables in or from these situations • U Working UNDER specific instructions encountered on the job. • P Dealing with PEOPLE. • J Making JUDGEMENTS and decisions 1991 Revised Handbook for Analyzing Jobs (RHAJ) provides detailed descriptions for temperaments
TransferabilityWork Fields MPSMS• Work Field: Indicates the • Materials, Products, Subject Matter, techniques or technologies and Services (MPSMS): Indicates through which are essential to the materials processed, final the performance of an products • created, data or subject matter dealt• occupation. It is expressed as a with, or services rendered through three-digit code, with the first performance of job duties. The two digits of a code indicating a MPSMS general category • code is designated by a three digits,• of technology or technique and with the first indicating if the the entire three-digit code occupation is within the category of indicating a specific category of materials technology or • and products, subject matter, or services, the second indicating a• technique, with each successive more specific occupational group, digit corresponding to a more and the third precise set of occupations. • a precise occupational category.
What should you ask the VE?• Specific limitations – From client testimony corroborated by MEO – From any MSS • Treating, SAMC, CE, ME• DOT data (PRW & Other jobs) – Numbers/SVP – Reasoning levels – Work Fields & MPSMS• Indirect conflicts with the DOT – Unilateral upper extremity limitations/abilities – Definition of temperaments from the RHAJ – Sit/stand option (SSR 83-12)• How does the VE know jobs exists? – Familiarity with resource materials (404.1566) other than the DOT (See 404.1566, local industrial publications) – Job placement experience – Labor market analysis