YOU MUST COMPLETE THE "FUNCTION REPORT" CORRECTLY

Social Security disability is awarded base on a claimant's limited ability to function.  It is not awarded based on diseases, but on functional limitations.

The primary way Social Security evaluates your functional ability is by a detailed questionnaire that they refer to as "the ADL (Activities of Daily Living) questionnaire.  The official name of the document is the "Function Report."

The Function Report is an 9-page document with Sections A-D and it contains approximately 60 questions.

I understand the temptation to ignore this form (just not bother with it) or to fly through it quickly because you feel it is a waste of time.  This is a crucial mistake.  You should spend a lot of time with this form.  In fact, this form should be your constant companion for a couple of days until it is completed lovingly, comprehensively, thoughtfully and very, very completely.

The Function Report will ask you things like:

• Do you cook your own food? How long does it take you? What do you cook?
• Do you spend time with others?
• What are your hobbies? How often do you do them?
• Do you go places on a regular basis?
• When you go out, how do you travel?
• Do you get along well with others?
• Do you need help caring for others or pets?
• Do you need help with bathing, getting dressed, or feeding yourself?
• How do your illnesses, injuries conditions affect your sleep?
• Are there things you used to do that your disability now stops you from doing?

Social Security will use your answers to these questions to determine (a) how your illness or injury affects your activities of daily living, and (b) are your allegations of symptoms consistent and credible.

If your application is denied (about 70% will be), the judge who hearings your appeal with use this same Function Report to evaluate consistencies in your symptoms and the credibility of your complaints.  This Function Report literally stays with you from the day your file your claim until the appeal is decided, perhaps 24 months later in some cases.

If you are unable to understand or complete the Function Report in loving, comprehensive detail--get someone who can help you:  a relative, your pastor, a friend, etc.  If you are represented by an attorney or advocate, he/she will understand this form and help you complete it correctly.  But for heavens sake, do not ignore the form or (just as bad) fly through it checking boxes just to say you finished it.  (That's how I used to do my homework, with equally dismal results, I might add). 

USING "OPINION" EVIDENCE TO WIN YOUR DISABILITY CASE

There are 2 types of medical evidence in a disability claim:  objective medical evidence and opinion medical evidence.

Objective medical evidence consists of things like X-rays, laboratory tests, MRIs or CAT scans.  These are found in your doctor's records.

Opinion evidence is quite different.  Opinion evidence is where your doctor or professional renders an opinion on how your medical condition affects your ability to perform certain functions.  

For example, an MRI may show that you have 2 herniated discs in your lumbar spine.  This is objective evidence.  It is what it is.  The doctor may then give an opinion as to how long you can sit, stand or walk.  That is opinion evidence.  If your doctor states:  "The patient would be limited to lifting no more than 10 pounds occasionally, sitting no longer than 30 minutes, standing no longer than 15 minutes at a time, or walking no more than 300 feet," that is opinion evidence.

Opinion evidence is used to form "residual functional capacities," that is, what is the most work like activity that an individual can perform on a sustained basis?  This will be use by decision makers to determine what type of jobs, if any, the claimant would be able to perform.  This, in turn, will determine whether the claimant meets the rules for Social Security disability benefits.

We should note here that broad, general conclusions by doctors are not useful.  For example, the statement, "It is my opinion that this patient is not able to perform any type of work and is totally disabled," is not useful.  This conclusion is reserved solely to the Commissioner of Social Security under the federal regulations (20 CFR 404.1527(d); SSR 06-03(p); SSR 96-6(p), etc.).  

A doctor's statement that addresses the patient's ability to sit,stand, walk, lift, carry, push, pull, concentrate, make decisions or perform other specific work related functions can be very useful opinion evidence.

 

5 THINGS THAT WILL WIN DISABILITY BENEFITS

5 THINGS THAT WILL WIN SOCIAL SECURITY DISABILITY BENEFITS:

1)  Admissible objective medical evidence from acceptable medical sources.

2)  Admissible opinion evidence from acceptable medical sources.

3)  Proper use of the Medical-Vocational Guidelines from 20 CFR 404, Subpart P, Appendix II, the "Grid Rules."

4)  Elimination of the potential for past relevant work, considering the most recent 15 years of your work history.

5)  Elimination of the potential for "other work" as it exists in the national labor force.

Winning Social Security disability cases involves strategic use of combined medical and vocational evidence.  A claimant cannot just submit his medical records, tell his story and trust to luck that he will be approved.  Not with the average national award rate at 42 percent.

STEP 5 IN A DISABILITY HEARING: WHERE MOST CASES ARE LOST

Toward the end of a Social Security disability hearing, there is a kind of side show that takes place between the judge and the vocational expert.  Most claimants are totally unprepared and surprised by this amazing side show.

The judge will use the claimant's medical record and testimony taken during the hearing to pose a series of hypothetical questions to the vocational expert.  Something like this, for example:

Judge:  Assume we have an individual of the same age, education and work experience as the claimant.  Assume this person could perform a full range of light work, as defined by the regulations. Further assume that this person can sit for at least 6 hours out of an 8 hour day, can stand and/or walk in combination for at least 4 hours out of an 8 hour day but would only be able to reach above shoulder level with the dominant right arm on an occasional basis.  Further assume that this individual would be off task less than 10 percent of an 8 hour workday and would be absent less than 1 day per month on a persistent basis.  Could such an individual perform any of the claimant's past relevant work?

Vocational Witness (Reply):  No, Your Honor. The claimant's past relevant work as a truck driver was at the medium exertion level. I also think the limitation that makes past relevant work impossible is your limitation to reaching above shoulder height only occasionally.  I think this rules out past relevant work.

Judge:  Are there any other jobs that exist in the national economy that such an individual could perform?

Vocational Witness (Reply):  Yes, Your Honor.  Such an individual could work at the following:

1.  Assembler:  DOT Code 729.684-054.  This is light work with an SVP of 2.  There are 75,000 jobs in the U.S.
2. Laundry Worker:  DOT Code 361.684-014.  This is light work with an SVP of 2.  There are 68,000 jobs in the U.S.
3. Wire Worker:  DOT Code 728.684-022.  This is light work with an SVP of 2.  There are approximately 125,000 jobs in the U.S.

And so it goes.  What just happened is this:  The vocational witness gave the judge sufficient justification to deny the claim at Step 5 because the claimant can perform several other jobs that exist in the national economy.  This is where most cases are lost at hearing.

What needs to happen here?  The vocational witness should be questioned about a wide range of issues concerning these jobs.  The issues are technical and often complicated.  A series of hypothetical questions should be provided by the claimant's representatives to show that this testimony is not credible and cannot be relied upon to deny the claim.  Unfortunately, the claimant is shocked and has little idea of what to expect and probably no idea of how to question the vocational witness effectively.  Case lost.

An experienced representative or advocate, who has faced hundreds of vocational experts, will be prepared to ask the right questions during his/her examination of the witness.  This may potentially save the case.   

Q.  Is there always a vocational witness at a hearing?  
A.   I have never attended an adult's hearing where there was not a vocational witness called by Social Security.

Q.  Does the vocational witness' testimony always hurt the case?
A.  No.  But in my experience, the vocational witness will give testimony that can deny the claim in 75 to 80 percent of hearings.  

PROVING YOU HAVE A DISEASE VS. PROVING A DISABILITY

Proving that you have a disease or an impairment is different from proving that you are disabled.  poving that you have a disease or an injury will not qualify you for Social Security benefits, unless you meet one of the published Listings, you qualify for a compassionate allowance, or you have a terminal disease.  Otherwise, proving that you have a particular disease or injury may not be enough for disability.

For example, you may have X-rays, MRIs and CAT scans that prove you have arthritis or degenerative disc disease in your back.  However, this does not automatically qualify for any disability benefit.

You must go a step further and show that the arthritis or DDD is so severe that it prevents you from doing at least one of the basic activities required of full-time work.  Basic activities of work includes such things as sitting, standing, lifting, carrying, bending, kneeling, crouching, crawling, reaching, handling, concentrating, following simple instructions, etc.  It will not be assumed that you cannot do these things just because you have arthritis or degenerative disc disease.

Your age has a lot to do with the type of case you present.  If you are age 55 or over, it may only be necessary to prove that you cannot perform the activities of your past relevant work (the work you have performed in the past 15 years).

If you are under age 50, it will be necessary to prove that you cannot perform any full-time work, even sedentary unskilled work.  This is where most claims are lost.

Judges will often find (at Step 4) that you are unable to perform any past relevant work.  This is especially true if your past work was at a medium or heavy exertion level, such as construction, heavy equipment operator, or a job that involved a lot of standing, walking and lifting.  However, they will also likely find that you could still perform light or sedentary work, such as a silverware wrapper, document preparer, garment tagger, inspector or hand packager.  There goes the case.

How do you best prepare for this?  If you have not spent years learning about exertion levels, residual functional capacities, demands of various jobs, categories of jobs in the outdated Dictionary of Occupational Titles (DOT), and other such occupational matters, it is best to use an advocate or attorney who has.  This won't guarantee a victory but it sure gives you a much better chance that you would have on your own.  Most claimants don't know the kind of technical side show they will be subjected to when it comes to testimony about the types of jobs they can perform.  Take someone with you who does!

WHAT DISABLED VETS NEED TO KNOW ABOUT SOCIAL SECURITY BENEFITS

Veterans who became disabled after October 1, 2001 may apply for Social Security disability benefits, regardless of where the disabling impairment occurred.

Social Security's website states the following:

Active duty status and receipt of military pay does not, in itself, necessarily prevent payment of Social Security disability benefits.  Receipt of military payments should never stop you from applying for disability benefits from Social Security. If you are receiving treatment at a military medical facility and working in a designated therapy program, or on limited duty, the government will evaluate your work activity to determine your eligibility benefits.

Even if you are told by someone at a Social Security office that you do not qualify for disability benefits because you still receive active duty pay, you are "still working," etc., be sure to check this with another qualified source.  Social Security personnel are generally well trained, hard working and well meaning individuals who do excellent work.  But, like in all other areas of life, mistakes are sometimes made.  That's why you have attorneys and advocates to assist you with protecting your rights under the Social Security Act and to make sure that you get all the benefits you are entitled to, even when a mistake is made.

If you need to just check out a Social Security disability claim, or appeal an unfavorable decision, please feel free to contact the Forsythe Firm here in Huntsville for a no cost, no obligation discussion.  (256) 799-0297. 

• Location:  7027 Old Madison Pike NW, Suite 108 (across from Bridge St.)
• Our Firm:  Private advocates with focus on Social Security disability. 
• Experience:  We regularly help thousands of claimants with Social Security matters, including claims, appeals, medical evidence, forms....
• While not affiliated with Social Security or the US Government (We work for you), we are Direct Pay Eligible with the Social Security Admin.
• FEES:  No consult fees, no upfront cost.  Pay a fee only if you are approved, and only after you are awarded back pay.  

 

THE SOCIAL SECURITY OBSTACLE COURSE

Social Security disability was set up under the Social Security Act to provide income for workers who became disabled before reaching retirement age.  The program, for the most part, doesn't work.  There are too many obstacles placed in the way.  Here are a few of them.

 Obstacle:  The Application for Benefits.  A typical Social Security benefit application package contains at least 38 pages of forms, questionnaires and documents.  Many people simply cannot complete all these forms in a way that allows benefits to be paid.  Social Security will use some of these forms, such as the Function Report, to deny claims.

Obstacle:  The Consultative Examination.  In some cases, Social Security will order you to attend a "consultative examination" with the doctor of their choice.  This doctor typically spends about 15 minutes with you and performs no lab tests, X-rays or other diagnostic procedures.  In 90 percent of cases, the doctor will find no significant abnormality and will, in effect, pronounce you fit to work.  He will report that you are able to get on and off the exam table without assistance, have limbs that appear normal, have breath sounds that seem OK and that you are "in no apparent distress."  Good to go.  Here comes your denial.

Obstacle:  The Single Decision Maker.  A single decision maker at the Disability Determination Service, who is not a doctor,  will review your medical records and make a decision that you may not be able to perform any of your past work but that there is some other work that you could do.  

Obstacle:  The Burden of Proof.  You are assumed to be able to work until you can prove otherwise.  If you are under the age of 50, it isn't enough to prove that you cannot perform any of your past work (called 'past relevant work').  You must also prove that there does not exist any other job in the United States economy that you are able to perform. This is a very high burden of proof.   Social Security will often argue, for example, that you could do the work of an inspector, garment tagger, ticket taker, egg washer, assembler or hand packager...  They will even argue that you can perform these jobs sitting down and that you can change from sitting to standing any time you need to.

Obstacle:  Interpretation.  Social Security will interpret medical and vocational evidence as it suits them.  If you look out the window and say it's raining, they will say, "Where do you find that in the medical evidence?"  If your doctor gives you a letter stating, "Mr. So-and-So is not able to work," Social Security will say, "The doctor is not allowed to make that decision."  

This is why a huge industry has grown up around Social Security disability.  At least 70 percent of all claims get denied before they are approved.  The appeal process is long, complicated and technical.  Unless you understand Social Security regulations, it can be a maize of terms, processes, interpretations and requirements that you have no hope of understanding.