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.