File Review in Low-Back Cases

From Social Security Disability Practice by Thomas E. Bush

In any back case, objective evidence is extremely important. But let us not make the same mistake that SSA so often makes: SSA elevates the importance of objective evidence so much that it often fails to consider the subjective things, the history, the consistency of the complaints, and the credibility of the claimant. It is possible for there to be very little objective evidence of a back impairment, yet a claimant may be disabled. For example, chronic back strain where there is no evidence of any x-ray changes still can be disabling. (One would expect a history of back spasm, however. Back spasm is an objective finding.)

When reviewing a record, look at the overall consistency of the claimant’s subjective complaints. Are the complaints consistent over time? Or does the claimant appear to tell one doctor one thing and another doctor another thing? Can such differences be explained by changes in symptoms over time?

Are the claimant’s complaints consistent with your theory of why this claimant is disabled? That is, does the claimant appear to be telling you one thing and the doctors another? Although this may be a problem of physician perception or physician note taking, you need to look at this carefully and ask your client about it.

If the claimant is obese, don’t forget that the Listings instruct decision makers that the “combined effects of obesity with musculoskeletal impairments can be greater than the effects of each of the impairments considered separately.” The Listings state that when assessing RFC, “adjudicators must consider any additional and cumulative effects of obesity.” Listing §1.00Q. See also Fanuele, et al., “Association Between Obesity and Functional Status in Patients with Spine Disease,” Spine, volume 27, No. 3, pp. 306 – 312 (2002), which concluded that for spine patients, the heavier they are, the more disabled they are.

Every back case needs to be evaluated using section §1.04A of the Listing of Impairments. Even though few cases at the hearing level actually meet this Listing, if any of the elements set forth in this Listing are present in you client’s case, it is important to make note of them. This Listing requires “neuro-anatomic distribution of pain.” Generalized pain complaints are usually found in so many places in a client’s record that it is not fruitful to make a list of all of them; but anything that shows a “neuro-anatomic distribution of pain” needs to be noted. It is also important to make a notation if there is a complete absence of your client’s pain complaints in the medical records.

The §1.04A issues you should note are the following: neuro-anatomic distribution of pain, limitation of motion of the spine (note that the limitation of motion does not have to be “significant” to meet this Listing), motor loss shown by atrophy with muscle weakness or muscle weakness alone, positive straight-leg raising test both sitting and supine, sensory loss or reflex changes. (The Listing itself refers to reflex “loss” but doctors generally find any reflex change to be significant. Reflex changes are usually illustrated by different findings for each leg.)

Muscle spasm is a significant finding. See §1.00E1 of the Listings and the pain regulation, 20 C.F.R. §404.1529(c)(2). However, muscle spasm was not made part of §1.04A because, according to SSA, it “usually reflects an acute condition that will not persist for a year. Moreover, because spasm is often an intermittent finding, it may not be present on a given examination even though an individual might otherwise be significantly limited.” 66 Fed. Reg. 58,018 (2001).

According to section 1.00E1 of the Listings:

Inability to walk on the heels or toes, to squat, or to arise from a squatting position, when appropriate, may be considered evidence of significant motor loss. However, a report of atrophy is not acceptable as evidence of significant motor loss without circumferential measurements of both thighs and lower legs, or both upper or lower arms, as appropriate, at a stated point above and below the knee or elbow given in inches or centimeters. Additionally, a report of atrophy should be accompanied by measurement of the strength of the muscle(s) in question generally based on a grading system of 0 to 5, with 0 being complete loss of strength and 5 being maximum strength.

The pain regulation, 20 C.F.R. §404.1529(c)(3), contains a list of factors that SSA will consider when evaluating pain:

(i) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or other symptoms;(iii) Precipitating and aggravating factors;(iv) The type, dosage, effectiveness and side effects of any medication you take or have taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;

(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and

(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.

Although a decision maker must consider all evidence in assessing residual functional capacity, SSR 96-8p provides a list of factors to consider:

1)  Medical history;

2)  Medical signs and laboratory findings;

3)  The effects of treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication);4)  Reports of daily activities;

5)  Lay evidence;

6)  Recorded observations;

7)  Medical source statements;

8)  Effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment;

9)  Evidence from attempts to work;

10)  Need for structured living environment; and

11)  Work evaluations, if available.

Functional Capacity Evaluations

Although functional capacity evaluations done by physical therapists can identify some people who are so disabled that they are incapable of performing sedentary work, such evaluations are generally not sufficient to determine whether most claimants can sustain the performance of a wide range of sedentary work. A conclusion based on a functional capacity evaluation that your client can perform sedentary work is not reliable. There is no good way to test tolerance for sedentary activity other than a full work simulation — eight hours per day over a period of weeks. And this is seldom done. You may find that a conclusion by a physical therapist that a patient is capable of sedentary work is based on nothing more than testing that shows the patient is incapable of light and medium work – without the patient’s capacity for sedentary work ever being tested. Thus, the patient is found able to do sedentary work simply by default.

Don’t necessarily accept therapists’ conclusions that your client did not give full effort or failed to cooperate with a test. Assessment of cooperation and sincerity of effort during functional capacity evaluations has never been validated. See Lechner, Roth and Straaton, “Functional Capacity Evaluation in Work Disability,” 1 Work 37 (Spring 1991); Lechner, Bradbury and Bradley, “Detecting Sincerity of Effort: A Summary of Methods and Approaches,” 78 Physical Therapy 867 (August 1998); and King, Tuckwell and Barrett, “A Critical Review of Functional Capacity Evaluations,” 78 Physical Therapy 852 (August 1998). In fact, you may discover that your client really did not give full effort. You may find that your client was too afraid of additional injury to give full effort during a functional capacity evaluation. Your client’s position is not necessarily unreasonable.

Thomas E. Bush has devoted his practice to social security disability issues since 1977.  He was elected to NOSSCR’s Board of Directors in 1988, and was President of NOSSCR for the 1997-98 term.  He is the author of Social Security Disability Practice.

Representation Agreement

From Social Security Disability Practice by Thomas E. Bush

Have your client sign a contract for attorney representation. We recommend using the two-tiered fee agreement provided below.

Two-Tiered Fee Agreement

The fee agreement process works well for the typical case in which a favorable decision is issued by SSA at or below the ALJ hearing level. In protracted cases, cases with perhaps more than one ALJ denial decision and multiple appeals, cases that take years to resolve, a $5,300 fee, when you finally get it, is probably inadequate. In such cases, you may find yourself wishing you had used the fee petition process. For this reason we recommend using a two-tiered fee agreement that combines use of the two fee approval systems into one contract. With this fee agreement, most cases will be processed under the fee agreement process. But in a protracted case, you can request a full 25% fee by filing a fee petition.

A sample two-tiered fee agreement follows at §178.3.1. This fee agreement meets the requirements of the “fee agreement process” (because it calls for a fee of 25 percent of past-due benefits or $5,300, whichever is less) if the favorable decision is issued at any level of administrative review through the first ALJ decision after the date of the contract—the first tier. If the first tier is applicable, the decision maker must approve the fee agreement. If the second tier is applicable, that is, if a favorable decision is issued later, the fee is 25 percent of past-due benefits. When the second tier applies, because the fee agreement process is no longer available, a decision maker must disapprove the fee agreement. A fee petition must be submitted to obtain approval of a fee. See §§700 and 703.

Expenses

Be sure to explain that expense reimbursement is not part of the fee and that SSA will not pay expenses directly to the attorney. The client must pay these expenses directly to you whether the case is won or lost.

Administrative Representation Only

Note that this contract applies only to representation before the Social Security Administration, which is governed by 42 U.S.C. § 406(a). If your client loses before SSA and you decide to take the case to federal court, a new contract governed by 42 U.S.C. § 406(b), which includes language for how to treat attorney fees awarded under the Equal Access to Justice Act, will have to be negotiated. Using two contracts, one for representation before SSA and one for federal court representation, has the advantage of allowing use of a much simpler contract for the usual case that will never go to federal court rather than trying to incorporate all features into one contract. A two-contract approach avoids the implication that you will certainly take the case to federal court if your client loses; and it gives you the opportunity to have your client come to your office at the time the case is taken to federal court to negotiate payment of expenses, or even negotiate a new contract for administrative representation that will be applicable if the federal court remands the case. See §758, for a sample federal court contract.

Scope of Representation Clause

Because some disability claimants more or less assume that because you have agreed to represent them in their social security disability or SSI claims, you will be representing them in all cases having to do with their disabilities, e.g., Medicaid appeals, long-term disability claims, mortgage or auto disability insurance claims, COBRA issues, worker’s compensation claims, etc. The contract includes a scope of representation clause designed to avoid such misunderstanding.

§178.3.1 Form: Two-Tiered Fee Agreement

Two-tiered Fee Agreement — Social Security Disability/SSI

ATTORNEY FEES: I employ [name of firm] to represent me before the Social Security Administration (SSA) in my disability case. If I win at any administrative level through the first administrative law judge (ALJ) decision after the date of this agreement, I agree that the attorney fee will be the lesser of twenty-five percent (25%) of all past-due benefits awarded to my family and me, or the dollar amount established pursuant to 42 U.S.C. § 406(a)(2)(A), which is currently $5,300, but may be increased from time to time by the Commissioner of Social Security. I understand that my attorney has the right to seek administrative review to increase the amount of the fee set under the preceding sentence of this agreement; but if that happens, my attorney will not ask for a fee of more than 25% of total back benefits awarded in my case. If the first ALJ decision after the date of this agreement is a denial and my attorney agrees to appeal and I win my case later, the fee will be twenty-five percent (25%) of all back benefits awarded in my case. If I receive both social security disability and SSI benefits, I understand that my total fee will not be more than 25% of all past-due benefits, or no more than the limit set by 42 U.S.C. § 406(a)(2)(A), if the limit applies. I understand that if I do not win benefits, then the attorneys get no fee.

SCOPE OF REPRESENTATION: I have employed my attorneys to represent me in my Social Security disability and/or SSI claim. I understand that my attorneys do not represent me in any other public or private claim related to my disability, or with any other government agency or any insurance company unless separate arrangements, including a separate contract, have been made for representation on any other claim.

PAYMENT OF ATTORNEY FEES: I understand that SSA will hold out 25% of past-due benefits and pay my attorneys for their work on my case unless my attorneys waive withholding and direct payment. If the attorneys waive withholding and direct payment or if SSA fails to withhold attorney fees, I will pay my attorneys promptly from the back benefits I receive.

I WILL PAY EXPENSES: In addition to fees, I agree to pay my attorneys for reasonable expenses that they pay in my case. These may include medical records and reports, photocopying, travel expenses, transcript preparation, and the like. I will get a bill for expenses that shows how and when my attorneys spent the money. In a case in which I get benefits, I agree to pay my attorneys back for these expenses as soon as I get a check for back benefits. I agree to pay expenses whether we win or lose.

I HAVE NOT BEEN PROMISED THAT I WILL WIN: My attorneys promised that they will do their best to help me. They did not promise me that I will win.

I accept and approve this agreement:

_____________________________
Date

__________________________
Signature

__________________________
Name (printed or typed):

__________________________
Attorney Signature:

__________________________
Attorney Signature

__________________________
Social Security Number

Thomas E. Bush has devoted his practice to social security disability issues since 1977.  He was elected to NOSSCR’s Board of Directors in 1988, and was President of NOSSCR for the 1997-98 term.  He is the author of Social Security Disability Practice.

Heart Disease Residual Functional Capacity

From Medical Issues in Social Security Disability by David Morton

Heart disease limitations will always fall into certain broad categories:

1. Limitation from anginal chest pain.
2. Limitation from shortness of breath (dyspnea).
3. Limitation from weakness.
4. Limitation from easy fatigability.
5. Limitation from life-threatening arrhythmia.
6. Limitation from environmental factors.

Each of these factors should be carefully considered when determining the RFC. There is no way an accurate RFC can be determined without close consideration of the claimant’s symptoms as well as the objective data. This point has to be emphasized, because some SSA adjudicators will try to use the objective cardiac performance alone to determine RFC. Of course, the SSA still must make a credibility judgment; alleged symptoms that deviate markedly from what would be expected by the nature of the objective evidence could mean several things: more development is needed to uncover an undocumented cause of further limitation, malingering, subjective exaggeration, or a mental disorder. It is important that the treating physician carefully document the nature and severity of the claimant’s symptoms, something that is critical not only to treatment but also to disability determination.

Both in clinical medicine and in disability determination, the most frequently used measure of cardiac performance is the left ventricular ejection fraction. As the LVEF falls, so does exertional capacity. That does not mean that the only basis for determining exertional capacity is the LVEF; it is one thread in the overall impairment severity.

•  An LVEF of 40-49% implies a limitation to no more than medium work.
•  An LVEF of 30-39% implies a limitation to no more than light work.
•  An LVEF of 20-29% implies a limitation to no more than sedentary work.
• An LVEF of less than 20% implies a limitation to less than sedentary work that would meet or equal a listing.

It must be emphasized that any “knee-jerk” assignation of RFC based on ejection fraction is poor medical judgment and poor adjudication; it is the kind of mistake that is most likely when non-doctors are permitted to make medical determinations but can also occur through doctors with inadequate understanding of cardiovascular disease. It is well-known that poor LVEF after treatment for CHF has a poor survival prognosis, with death occurring within 6 months in 21% of those with an LVEF of 40% or less. Recently, it has been determined that there is a considerable disability and mortality burden of CHF patients even if their LVEF is well-preserved (40% or higher), with a 6-month mortality of 13% and functional decline (symptoms and hospital readmissions) almost as great as those with lower ejection fractions (21% vs. 30%).68

The above LVEF numbers are not SSA policy and should not be applied arbitrarily; they just provide a modifiable framework for a more refined determination. They are used as ceilings on exertional limitation which should not be exceeded without demonstrative proof of higher exertional capacity, such as performance on an exercise test. (There are rare individuals who can perform levels of exertion on objective testing that substantially exceed what one would expect if anticipating performance based on LVEF alone.) Obviously, a claimant with a history of documented heart failure could meet listing 4.02B with an ejection fraction of 30% and other abnormalities and so should not be assigned an RFC for light work.
Note: It should be remembered that diastolic cardiac dysfunction can be associated with a normal LVEF. In these cases, the left ventricle is stiff and cannot relax properly. In such claims, the SSA should not cite a normal LVEF as an important factor in determining RFC. Unfortunately, many treating physicians, even cardiologists, do not address whether there is diastolic dysfunction in their medical records. If either a treating cardiologist or a CE cardiologist is involved in evaluating a claimant’s heart disease, they should be asked specifically about diastolic dysfunction when the claimant’s symptoms of weakness and shortness of breath exceed what would be expected based on the usual systolic function of the left ventricle, i.e., the LVEF or similar systolic performance indicators. Some cardiologists will not even have considered the possibility of diastolic dysfunction, but the acknowledgement of that as a possibility can add credibility to a claimant’s alleged symptoms. It should not be assumed that the SSA adjudicator, even if a medical doctor, will think of diastolic dysfunction when reviewing a cardiac claim. The chances of a cardiologist considering this abnormality as a possibility is greater than for other doctors, but the SSA does not have cardiologists reviewing most heart impairment claims. It would be operationally impossible for the SSA to have a different specialist address each allegation put forth by claimants. Although in the past diastolic dysfunction has been an important potential source of error by the SSA, these new listings may improve that situation by specifically referring to diastolic heart failure.

But what about RFC in cases of diastolic heart failure? Since the left ventricular ejection fraction may be normal in diastolic failure, the LVEF (as discussed above) is of little value in assessing exertional capacity. In these cases, more weight must be given to symptoms such as fatigue and shortness of breath as exertionally limiting. For example, a claimant with well-compensated and uncomplicated systolic heart failure with a LVEF of 50% and normal heart size could arguably be considered capable of medium work. However, such an exertional RFC would be a disservice to a claimant with diastolic heart failure and a LVEF of 50%, if they had symptoms compatible with no more than light work. In such cases, the claimant must be given increased latitude in judgment about symptom credibility. Cardiopulmonary exercise testing has objectively demonstrated by peak oxygen consumption that there is no significant difference in systolic and diastolic heart failure patients in regard to exertional capacity, despite marked differences in LVEF.68a It may be relevant to point out that people with diastolic heart failure are more often female, have increased body mass indexes, and are more likely to be older. A significant percentage of diastolic heart failure cases are probably irrelevant to Social Security disability determination by being of retirement age or older. However, there are enough cases in younger ranges that this disorder will remain a legitimate adjudicative problem.

If a claimant had a history of an episode of acute heart failure that was completely reversible—such as might be caused by hyperthyroidism until it were treated, a condition of what is called high output failure from an extremely fast heart rate—there might be no residual cardiac limitation. Such a person would not actually have heart disease, but a heart driven to failure by another cause. This situation is rare in disability determination; virtually all claimants have chronic heart disease, usually ischemic heart disease as a result of coronary artery disease (CAD).
If a claimant had one documented episode of CHF in the past due to chronic heart disease and is well-compensated with treatment, they might be given a medium RFC if all factors—including symptoms, information about exertional capacity, coronary artery disease status, and ventricular performance data—are compatible with that level of work. It should be emphasized that these are claimants who are doing extremely well in the treatment of their heart failure. It is inconceivable that any claimant should receive a “not severe” determination if there were chronic heart disease severe enough to have ever produced heart failure.

If a claimant had a documented episode of CHF in the past due to chronic heart disease and still has a significantly enlarged heart with a cardiothoracic ratio (CT ratio) of 55% or more, it would be difficult to justify an RFC higher than light work. Depending on relevant symptoms on daily activities, as well as other abnormalities, the RFC could be lower.

If a claimant had a documented episode of CHF in the past due to chronic heart disease and can only complete 5-6 METs on an exercise test, a restriction to sedentary work would be appropriate. Although exercise tests are very helpful in obtaining objective information about exercise capacity, the SSA should never purchase such testing on a claimant who already satisfies the listing. However, the treating physician may have performed testing and those results become relevant to the disability determination.
The presence of significant heart disease should be a reason to limit exposure to extreme heat or cold while working, because these temperature extremes add significant stress to the body’s physiology with a corresponding decrease in exertional ability. For example, it would not be reasonable to expect someone with significant heart disease to work in 90° plus heat or in freezing temperatures; symptoms will onset earlier under such circumstances. In some cases, environmental stressors can be tolerated if the exertional workload is lessened. The SSA ignores environmental stress in most heart cases and this is not proper.

There is no extensive medical literature regarding exercise capacity and environmental temperature in individuals with CHF. The issue is complicated by the fact that numerous environmental circumstances, and variations in individual impairment type and severity, can apply in individual cases. Nevertheless, exercise impairment is predictable on physiological grounds based on increased cardiac workload and hormone changes. An unusual, but carefully controlled study, on the influence of cold on exercise capacity in people with CHF showed a 21% decrease in exercise capacity at -8 C° (17.6° F) compared to 20° (68° F), whereas normal controls increased exercise time 20% during a period of study and exercise training.69 This 41% difference is quite significant, and most of the patients (91%) were only NYHA Class II. Thus, limitation of exercise capacity in cold environments should not be thought limited to advanced heart failure. Although those CHF patients treated with a class of drugs known as beta-blockers suffered significantly less attenuation of exercise capacity, these drugs certainly did not result in normal exercise capacity. For example, control patients achieved maximal exercise levels of about 10 METs, about 5.8 METs before beta blockers, and about 6.2 METs after receiving beta blocker drugs. Patients with coronary artery disease had cardiac ischemia ruled out by radionuclide scanning of the heart before being allowed entry into the study, and other exercise-limiting impairments also caused exclusion from the study. There is little question that the effects of cold alone were being measured. In real life, it is probable that prolonged exposures to temperature extremes (as in actual work conditions) would result in exercise decrements that are greater than during laboratory testing procedures; also, prolonged exposures to lesser temperature extremes are probably as limiting as shorter exposures to greater temperature extremes. Informed medical judgment is required to evaluate the possible effect of environmental temperatures on cardiac disease, but assurance of precision is not possible and great weight should be given to the individual claimant’s medical condition.

IMPORTANT NOTE: The presence of significant lung disease in a claimant who has had an episode of CHF in the past due to chronic heart disease should always result in lowering the over-all impairment severity rating by at least one level, i.e., from medium work to light work or light work to sedentary work, or sedentary work to a finding of equivalence to listing requirements. The pulmonary and cardiovascular systems are interactive and co-dependent. For example, if a claimant has an RFC that would be for medium work capacity based on emphysema and an RFC that would be medium work capacity for heart disease, then the over-all RFC should never be higher than light work with restrictions from being exposed to extreme heat or cold, or excessive dust and fumes. The only exceptions to this rule would be rare instances in which a claimant demonstrates a higher exertional capacity on objective exercise testing. Many claimants with lung disease also have heart disease. This is especially true of cigarette smokers, who often have both chronic obstructive pulmonary disease (chronic bronchitis and emphysema) and coronary artery disease. Failure to recognize increased severity as a result of the inter-dependence of cardiac and pulmonary impairments is a major source of error by SSA adjudicators, despite federal regulations requiring consideration of the combined effect of impairments (20 CFR §§404.1522(b), 416.922(b)).

The claimant’s symptoms are important. In considering activities of daily living (ADLs), every effort should be made to obtain clear examples of activities that precipitate symptoms—whether those symptoms are chest pain, shortness of breath, weakness, dizziness or something else. Can the claimant walk half a mile? A block? Half a block? Up two flights of stairs? One flight? How are they affected by heat and cold, with specific examples? What objects can be lifted? Carried how far? What activities could the claimant perform that they are no longer able to do? It should be remembered that many activities can be slowly completed that could not be done at a normal pace; that does not mean such functional capacity is an effective work-related ability. So, activity completion durations are important in all forms of heart disease. If a claimant can walk half a mile but it takes an hour, because of SOB or anginal chest pain with frequent stops, for example, it would be ridiculous to consider this a meaningful walking distance for any real-life job function. Another issue is that, particularly in the case of those with a history of heart failure and continuing ventricular dysfunction, a person might be able to perform at a certain activity level one day but not other days; medical conditions are not static in their effects on people. Even the quality of sleep can make a big difference in function the next day; medications and the development of transient pulmonary edema at night can easily ruin a night’s rest. In other instances, a person can perform a number of activities such as shopping and cooking but be exhausted for several days afterward. Most treating physicians do not know the level of detail about a claimant’s ADLs that is needed for accurate adjudication; while their opinion is important, detailed information about ADLs almost always must come from the claimant or people who have observed the claimant in their daily life. Use of the arms is particularly demanding on the heart; that is why women with heart disease sometimes get exhausted trying to wash their hair and cannot push a vacuum cleaner around. Vague statements about ADLs, with answers such as “I don’t do anything” or “none” for questions from SSA about activities are close to useless for evaluation and do not increase the likelihood of a favorable decision. Most claimants do not understand how to complete daily activity forms given to them by the SSA; the responses are too brief and vague. Unfortunately, this can get a deserving claimant denied, because critical functional details were not given to the SSA.

Dr. Morton has degrees in both psychology (B.A.) and medicine (M.D.). For 14 years he was a consultant for Disability Determination for Social Security Administration in Arkansas, and he was the Chief Medical Consultant during the last 8 years of that time. In his capacity of Chief Medical Consultant, he hired, trained, supervised and evaluated the work of both medical doctors (M.D.s), and clinical psychologists (Ph.D.s) in the medical determination of mental disability claims.

Theory of the Case

From Social Security Disability by Thomas E. Bush

Be prepared to refine your theory of why your client is disabled. That is, seek evidence that supports the theory of the case, but when things turn up that don’t quite fit, don’t try to make the facts fit the theory. Don’t say, “Here is the conclusion on which I will base the facts.” Instead, when the facts don’t fit, rethink the theory.

You will find that revising the theory is essential in a number of your cases. For example, some cases that start out looking as if they involve only physical impairments, turn out in the end to be mental impairment cases – either because they involve somatoform disorders, that is, mental impairments that manifest themselves with physical symptoms, or because the real reason your client cannot work is, say, depression associated with a physical impairment that your client’s doctor says ought not to be disabling.

The theory of the case does not have to be complicated. In fact, it is better if it can be described in a few sentences. But it must answer the central question in the case – why is your client disabled? In simple cases, the theory may address only residual functional capacity and issues presented by step five of the sequential evaluation process, the step that asks whether the claimant is capable of performing other work in the economy. Here is a simple example: The claimant, who is age 52 and has an unskilled medium work background, is limited to sedentary work by spinal stenosis. Thus, Rule 201.12 of the Medical-Vocational Guidelines requires that he be found disabled. In actual practice, you would probably include references to the evidence that show that the claimant is limited to sedentary work; but beyond this, nothing more is needed.

In more difficult cases, such as those involving literate claimants under age 50, the theory, in essence, is an explanation why your client cannot do a broad range of sedentary work. And if there is alcoholism or other drug abuse (AODA) involved, since Congress has seen fit to include as part of the definition of disability the requirement that AODA not “be a contributing factor material to the Commissioner’s determination,” 42 U.S.C. §423(d)(2)(C), include in the theory of the case the explanation why this is not “material.”

Whenever the facts of your client’s case contain an impediment to reaching a conclusion that he or she is disabled, it helps to explain the way around the problem as part of the theory of the case. For example, if the claimant is working at what appears at first glance to be the substantial gainful activity level, include a reference to deducting impairment-related work expenses as part of the theory. If the state agency found that the claimant could return to past relevant work, include as part of the theory an explanation why the claimant cannot do the past job.

The theory of the case gives focus to development of the evidence and to hearing testimony. It is the engine that runs the case. As such, write out a tentative theory when you first interview a claimant. It can be entered on the Analysis Form below. Update it as you go along so that everyone in your office who works on the case has access to the latest version of the theory. The final version of the theory may be sent to the judge (or to the state agency if you become involved in the case below the hearing level).

In addition to a brief theory statement, it is also useful to maintain a current detailed description of your client’s residual functional capacity. The Analysis Form below provides a place to record your initial impression. If you make significant changes to the theory, update the detailed description of your client’s residual functional capacity, too. You’ll need this detailed description to send to your client’s doctor when you request an opinion from the doctor about what your client can still do despite your client’s impairments.

Download Analysis Form (from §175.1 Social Security Disability Practice).

Thomas E. Bush has represented social security disability claimants since 1977 when he spent a year as a VISTA attorney with the Milwaukee Indian Health Board. At the end of 1977, he opened his own law office. Since then his law practice has concentrated more and more on social security disability representation. The two brochures he has written, “Social Security Disability and SSI Claims-Your Need for Representation” and “Preparing for Your Social Security Disability or SSI Hearing,” are in use all over the country. A member of the National Organization of Social Security Claimants’ Representatives (NOSSCR) since 1980, he served on the Board of Directors from 1988 to 2001. He was the President of NOSSCR for the 1997-98 term.

Cross-Examining the VE on Qualifications

From Social Security Disability Advocate’s Handbook by David Traver

Unless challenged, the regulations, rulings and Social Security Administration’s publications suggest that Vocational Expert’s spend most of their professional time placing disabled people in the workforce – hence their expertise. Undoubtedly, there are VEs who do this type of work.

However, you are more likely to encounter at a hearing a VE whose practice is primarily “forensic” (i.e., “hired guns” who now offer opinions in a wide variety of cases – personal injury, worker’s compensation, divorce and pension). The purpose of the examination is to obtain that information. Once obtained from a specific VE, it can be used with the same VE in numerous cases.

Question:   Is work as a vocational rehabilitation expert your full time profession?

Question:   Are you generally familiar with the term “forensic vocational rehabilitation” as a description of work performed by Vocational Expert’s which include the consideration of vocational issues in legal cases involving personal injury, worker’s compensation, divorce, and Social Security?

Question:   What percentage of your practice, in terms of your time, is devoted to:

Reviewing Social Security files and testifying in Social Security Hearings.	______%
Preparing reports or testifying in worker’s compensation claims.	______%
Preparing reports or testifying in personal injury cases.	______%
Preparing reports or testifying in divorce cases.	______%
Preparing reports or testifying in other legal matters, not including above.	______%

Question:   What percentage of your practice, in terms of your time, is devoted to business management duties such as supervision of employees, marketing, or similar duties that are not billable to your client?

Question:   What percentage of your practice, in terms of your time, is devoted to conducting labor market surveys that involve the actual counting of jobs?

Question: What percentage of your practice, in terms of your time, involves working for employers addressing issues such as recruitment, retention and training?

Question:   What percentage of your practice, in terms of your time, is involved in the actual efforts to place clients into competitive employment?

Question:   Do you maintain an office where you meet these clients?

Question:   Who typically pays you for providing these services?

Question:   What percentage of your practice, in terms of your time, is involved in the actual efforts to place clients into sheltered employment?

Question:   What percentage of your practice, in terms of your time, is devoted to placement of clients into educational pursuits?

Question:   Any other areas of non-forensic practice and their percentage?

Potential ALJ Objection: “Counsel you are wasting my time, where is all this going….”

Response:  The Social Security Administration’s own “Handbook for Vocational Experts” provides:

A VE should rely on own placement experience, knowledge gained from doing job analysis for employers, conducting personal job surveys for industry and commerce, and local, state, and regional industrial directories and other resource materials, including government publications listed in 404.1566 and 416.966.

I am asking if the witness has recent relevant work experience needed to meet this standard. If you prefer, your Honor, I would be happy to submit this line of quoting in interrogatory format.

David Traver earned bachelor and master degrees in vocational rehabilitation with an emphasis in vocational evaluation, and attended law school at the University of Wisconsin. He began practicing disability law in 1992. He hosts Social Security Advice CONNECT, at www.ssaconnect.com, and is a sustaining member of the National Organization of Social Security Claimants’ Representatives.

The Problem of Chest Pain Descriptions in Disability Adjudication

From Medical Issues in Social Security Disability by David A. Morton III, M.D.

Cardiovascular disease affects millions of Americans annually, so the Social Security Administration (SSA) has extensive and specific regulations regarding such impairments for applicants for Social Security disability. When blood flow to the heart itself is insufficient to meet the oxygen demands of that organ, chest pain (angina pectoris) is often the result. Since symptoms are an important part of disability adjudication, chest pain plays a prominent role in evaluation of such cases. While treating physicians are free to simply use their best judgment to make a decision about evaluation and treatment, SSA is often faced with conflicting descriptions of chest pain symptoms.

Accurate descriptions of chest pain are important not only for the treatment of patients, but disability determination. In the latter context, such symptoms must be evaluated in a manner that satisfies legal requirements, as well as medical judgment. Unfortunately, there are serious problems associated with such descriptions.

Angina Pectoris – The Problem of Multiple Descriptions

1. In reviewing medical records from multiple treating sources regarding the same person, chest pain descriptions vary considerably.
2. Medical records from treating physicians rarely contain even a description of the basic variables of location, quality, precipitating cause, duration and mode of relief. When information about these factors is present, it is most often not detailed enough to rule in or out non-cardiac causes of chest pain.
   …
3. Chest pain descriptions taken by physicians doing consultative examinations (CEs) for the SSA often vary considerably among the doctors taking them on the same person, and also may be quite different than those offered by the treating doctor.
4. Patients, including claimants, are notorious for inconsistency in reporting their symptoms to different physicians, whether or not they are applying for disability benefits. This unreliability may be one of the reasons for the tendency of cardiologists to want to look at coronary arteries directly via cardiac catheterization, rather than putting much weight on the specifics of the patient’s chest pain description in deciding whether catheterization is indicated.
5. The author, as a State agency medical consultant, on numerous occasions for a period of time called claimants to get a careful chest pain history, in order to resolve multiple and conflicting descriptions. This procedure resulted in more descriptions different from those offered the SSA by the treating physician. In some instances, the claimants denied having chest pain (including chest discomfort of any kind) even though the treating physician had given the State agency a perfect description of classical angina. Since priority is given to the treating physician description anyway, the author stopped contacting claimants. However, it became very clear that chest pain descriptions in general are extremely unreliable and non-reproducible between history takers—especially when there is an allegation of chest pain but no documented evidence of ischemic heart disease.

So, what is the solution for the disability adjudicator in trying to decide which description is more credible? Note that “credible” here means most appropriate for complying with the legal (regulatory) requirements for disability evaluation by the SSA. This could be quite different from the judgment of an individual medical doctor. The following points should be kept in mind:

• Generally give adjudicative priority to descriptions from treating physicians. There are reasonable exceptions. For example, a treating physician who keeps sloppy and skimpy records, or who sees a patient infrequently, is not as credible as a cardiologist who sees the claimant once and takes a careful history.
• If the treating doctor does not have a complete description of chest pain in evidence offered to the SSA, the SSA should attempt to make an appointment for the claimant with the treating physician for the specific purpose of obtaining a detailed description. The SSA will pay for this CE with the treating physician. If the treating physician will not cooperate—a frequent occurrence—then an exam with a non-treating physician is necessary.
• If there are multiple treating physician descriptions, that of a cardiologist has more credibility than descriptions of other treating doctors.
• If there are multiple conflicting descriptions from different treating physicians, the claimant should be sent to a CE—if possible, a cardiologist—to obtain a careful independent description. Asking a treating physician why their description differs from another treating physician invites speculation rather than adding to the quality of the evidence; one doctor cannot know why he or she got a different description than another doctor and it is pretty irritating to them to be asked such a silly question.
• The SSA should make sure that chest pain descriptions are taken by a licensed physician, not nurses or other members of their office staff. Chest pain descriptions by nurse practitioners or physician assistants are not substitutable. Descriptions from chiropractors, naturopaths, etc., have little credibility and do not obligate the SSA to any course of adjudicative action.

The problem of conflicting chest pain descriptions is compounded by the fact that there are many possible causes of non-cardiac chest pain, some of which may closely resemble chest pain of cardiac origin. However, that is an issue separate from this discussion.

I’ve only briefly touched on the problem of evaluating chest pain in an adjudicative environment, in contrast to a clinical environment. SSA medical consultants not properly trained in regulatory constraints may make serious errors in evaluating chest pain, even if highly qualified in clinical medicine. Non-medical doctors, such as SSA disability examiners, should not make adjudicative judgments about the cause of chest pain for the same reasons they would not be allowed to treat a patient for cardiovascular disease. Disability claimants deserve at least the same quality of adjudicative care they would receive in clinical care from a treating doctor.
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1. 20 CFR, Part 404, Subpart P, Appendix 1 (Listing of Impairments), §4.00 Cardiovascular System
2. §4.04.1.a, Medical Issues in Social Security Disability

Dr. Morton has degrees in both psychology (B.A.) and medicine (M.D.). For 14 years he was a consultant for Disability Determination for Social Security Administration in Arkansas, and he was the Chief Medical Consultant during the last 8 years of that time. In his capacity of Chief Medical Consultant, he hired, trained, supervised and evaluated the work of both medical doctors (M.D.s), and clinical psychologists (Ph.D.s) in the medical determination of mental disability claims.