Checklist of Appeals Arguments

Summary of arguments in social security disability appeals council and federal court memoranda.

by Sarah H. Bohr

Excerpted from Social Security Issues Annotated

I.    ERRORS IN THE SEQUENTIAL EVALUATION PROCESS

A.   STEP 1: SUBSTANTIAL GAINFUL ACTIVITY (SGA)

____   1.       The ALJ erred in finding that the claimant’s work activity was SGA.

____   2.       The ALJ erred in not considering the claimant’s work activity to be an unsuccessful work attempt.

____   3.       The ALJ erred in not considering the claimant’s return to work as part of his/her “trial work period.”

B.   STEP 2: SEVERE IMPAIRMENT

____  1.       The ALJ erred in finding that the claimant did not have a severe impairment.

____  2.       The ALJ failed to consider the combined effect of all of the claimant’s impairments in determining severity.

____  3.       The ALJ erred in not considering the claimant’s subjective symptoms in determining severity.

____  4.       The ALJ erred in determining that the claimant did not suffer from a severe ___________ impairment.

C.   STEP 3: LISTED IMPAIRMENT

____  1.       The ALJ failed to properly evaluate whether the claimant’s impairment met or equaled the listing for __________.

____  2.       The ALJ improperly determined that the claimant’s impairment did not meet the listing for ___________.

____  3.       The ALJ improperly determined that the claimant’s impairments were not medically equal to the listing for ___________.

____  4.       The ALJ failed to consider the combined effect of the claimant’s impairment in determining whether his/her impairment equaled a listing.

____  5.       The ALJ erred in failing to obtain an updated medical opinion of a medical expert as to medical equivalency.

D.   RESIDUAL FUNCTIONAL CAPACITY (CONSIDERED AT STEPS FOUR _AND FIVE)

____  1.       The ALJ erred in determining the claimant’s RFC.

____  2.       The ALJ erred in failing to consult with a medical expert regarding the claimant’s RFC since the record was devoid of any analysis [or any recent analysis] of functional capacity by a physician or other expert.

____  3.       The ALJ erred in relying on an outdated RFC assessment by a non-examining physician which was not based upon the full record in this case.

____  4.       The ALJ erred in ignoring, without explanation, the opinions and findings of the claimant’s treating physician as to his/her functional limitations.

____  5.       The ALJ erred in determining that the claimant could perform the full range of sedentary [or light or medium] work. [Note: state finding of RFC as found by the ALJ.]

____  6.       The ALJ erred in failing to consider the effect of the claimant’s mental impairment on his/her RFC.

____  7.       The ALJ erred in failing to consider the claimant’s non-exertional impairment of __________________ [i.e., pain, the hands, the upper extremity, depression, inability to stoop, etc.] and its effect on his/her ability to perform the full range of sedentary [or light or medium] work.

E. STEP 4: PAST WORK

____  1.       The ALJ erred in determining that the claimant could return to his/her past relevant work as a _______________.

____  2.       The ALJ erred in finding that the claimant could perform his/her past relevant work if the previous employer made accommodations.

”____ 3.       The ALJ failed to consider the effect of all of the claimant’s impairments on his/her ability to perform his/her past relevant work.

____  4.       The ALJ failed to make explicit and necessary findings as to the physical and mental demands of the claimant’s past work.

____  5.       The ALJ erred in not evaluating the claimant’s ability to perform all of the duties of his/her past work.

____  6.       The ALJ erred in determining that the claimant’s past work of less than three months constitutes “past relevant work.”

____  7.       The ALJ improperly considered past work performed more than fifteen years prior to the date of the Decision.

F.    STEP 5: OTHER WORK

____  1.       The ALJ erred in mechanically applying the age category of the Medical-Vocational Guidelines (“Grids”) due to the claimant’s borderline age.

____  2.       The ALJ erred in applying the educational category of the Medical-Vocational Guidelines (“Grids”).

____  3.       The ALJ erred in finding that the claimant’s illiteracy was not supported by substantial evidence.

____  4.       The ALJ erred in failing to consider the effect of the claimant’s illiteracy on his/her ability to perform other work.

____  5.       The ALJ erred in failing to consider the effect of the claimant’s inability to speak English on his/her ability to perform other work.

____  6.       The ALJ erred in finding that a younger claimant who was limited to less than sedentary work was not disabled, contrary to § 200.00(h) of the Medical-Vocational Guidelines (“Grids”).

____  7.       The ALJ erred in finding that the claimant was capable of performing routine unskilled work.

____  8.       The ALJ erred in finding that the claimant has the ability to perform other work in the national economy.

____  9.       The ALJ failed to consider the effect of all of the claimant’s impairments on his/her ability to perform other work.

____  10.     The ALJ erred in failing to consider the claimant’s non-exertional impairment of __________________ [i.e., pain, the hands, the upper extremity, depression, borderline mental capacity (IQ of 70-80), inability to stoop, etc.] and its effect on his/her ability to perform other work.

____  11.     The ALJ erred in mechanically applying the Medical-Vocational Guidelines (“Grids”) despite the presence of significant non-exertional impairments.

____  12.     The ALJ erred in mechanically applying the Medical-Vocational Guidelines (“Grids”) because the claimant is unable to perform the full range of work on a sustained basis.

____  13.     The ALJ erred in failing to obtain vocational expert testimony in analyzing whether the claimant could perform other work.

____  14.     The ALJ erred in finding that the claimant was capable of performing jobs which exist in significant numbers in the national economy.

II.   ERRORS IN THE ASSESSMENT OF DISABILITY

A.   DURATION OF IMPAIRMENTS

____  1.       The ALJ erred in determining that the claimant’s impairments did not/would not last twelve months.

____  2.       The ALJ erred in determining that the claimant could return to his/her past relevant work within twelve months of the date of his/her accident/injury.

B.   MEDICAL IMPROVEMENT ISSUES

____  1.       The ALJ erred in finding that the claimant’s condition had medically improved.

____  2.       The ALJ erred in granting a closed period of disability without considering medical improvement.

____  3.       The ALJ erred in terminating the benefits of the claimant, who was participating in a vocational rehabilitation program.

____  4.       The ALJ erred in finding that the claimant’s failure to seek medical treatment was evidence of medical improvement.

C.   WEIGHT OF TREATING PHYSICIAN’S OPINION

____  1.       The ALJ erred in failing to accord “controlling weight” to the opinion of the treating physician.

____  2.       The ALJ erred in according inadequate weight to the opinion of the claimant’s treating physician.

____  3.       The ALJ erred in not determining whether a doctor was a treating physician.

____  4.       The ALJ erred in ignoring evidence provided by the treating physician.

____  5.       The ALJ erred in not directing the claimant to obtain a more detailed report from his/her treating physician.

____  6.       The ALJ erred in not finding that a treating therapist was an acceptable medical source.

____  7.       The ALJ erred in rejecting the treating physician’s opinion without making appropriate findings.

D.   WEIGHT OF THE EVIDENCE

____  1.       The ALJ erred in failing to discuss each impairment.

____  2.       The ALJ erred in improperly disregarding the testimony of the claimant.

____  3.       The ALJ erred in failing to discuss and resolve or discredit conflicts in the evidence.

____  4.       The ALJ erred in rejecting uncontroverted evidence.

____  5.       The ALJ accorded inadequate weight to the only current uncontroverted medical opinion in the record.

____  6.       The ALJ erred in failing to state with particularity the weight given to the evidence, including the different medical opinions.

____  7.       The ALJ erred in improperly relying on the opinions of a non-examining physician.

____  8.       The ALJ erred in giving more weight to a non-examining physician than to an examining physician.

____  9.       The ALJ erred in according inadequate weight to the opinion of the examining physician

____  10.     The ALJ erred in rejecting an examining physician’s opinion based on the fact that it was secured by an attorney.

____  11.     The ALJ erred in relying on an unsigned medical report from a consultative physician.

____  12.     The ALJ erred in failing to give any weight to the functional limitations set forth by the claimant’s treating chiropractor.

____  13.     The ALJ erred in failing to give any weight to the opinion of the claimant’s treating nurse practitioner since his/her treatment was supervised by a physician.

____  14.     The ALJ erred in substituting his/her own opinion for those of the medical experts.

E. CREDIBILITY

____  1.       The ALJ erred in failing to make proper credibility findings as to the claimant’s or other witnesses’ testimony.

____  2.       The ALJ erred in finding that the claimant was not a credible witness.

____  3.       The ALJ erred in looking to the claimant’s lack of medical treatment in assessing credibility.

____  4.       The ALJ improperly discounted the claimant’s credibility on the basis of the claimant’s limited daily activities.

____  5.       The ALJ erred in engaging in “sit and squirm jurisprudence.”

F.    EVALUATION OF COMPLAINTS OF PAIN AND OTHER SUBJECTIVE SYMPTOMS

____  1.       The ALJ improperly evaluated the claimant’s subjective complaints of pain.

____  2.       The ALJ erred in improperly discrediting the claimant’s complaints of pain.

____  3.       The ALJ erred in relying on the claimant’s failure to take prescription medication as a basis for rejecting his/her complaints of pain since the claimant presented evidence of a good reason for not taking such medications.

____  4.       The ALJ erred in looking for specific medical findings in order to credit a claimant’s complaints of pain.

____  5.       The ALJ erred in failing to give specific reasons for discrediting the claimant’s pain testimony.

____  6.       The ALJ’s reasons for discrediting the claimant’s allegations of disabling pain were legally insufficient.

____  7.       The ALJ erred in not considering the higher and lower thresholds of resistance to pain experienced by different individuals.

____  8.       The ALJ improperly evaluated the claimant’s subjective complaints of ___________ [i.e., pain, headaches, fatigue, dizziness, swelling, etc.]

____  9.       The ALJ erred in not considering the claimant’s side effects from his/her medication.

G.   COMBINATION OF IMPAIRMENTS

____  1.       The ALJ erred in failing to consider each and every impairment.

____  2.        The ALJ failed to consider the claimant’s impairments, both individually and in combination.

H.    OPINIONS OF OTHER AGENCIES REGARDING DISABILITY

____  1.       The ALJ erred in not affording appropriate weight to the findings of other agencies regarding disability.

____  2.       The ALJ erred in not considering the Veterans Administration rating of disability awarded to the claimant.

I.    FAILURE TO FOLLOW PRESCRIBED TREATMENT

____  1.       The ALJ erred in finding that the claimant was noncompliant with prescribed treatment.

____  2.       The ALJ failed to make specific findings that if the claimant followed his/her doctor’s recommendations, he or she would be able to return to work.

____  3.       The ALJ failed in his/her duty to investigate all possible reasons for the claimant’s alleged noncompliance with a prescribed course of treatment.

____  4.       The ALJ failed to properly analyze whether the claimant’s indigency constituted a justifiable excuse for failing to follow treatment.

J.    ONSET DATE

____  1.       The ALJ erred in determining the claimant’s onset date.

____  2.       The ALJ erred in failing to obtain the assistance of a medical advisor in determining the onset of the claimant’s impairments.

____  3.       The ALJ erred in failing to accord appropriate weight to a treating physician’s retrospective opinion of the onset of the claimant’s condition.

K.   VOCATIONAL EXPERT TESTIMONY

____  1.       The ALJ erred in crediting the findings of a non-examining testifying VE over the findings of the examining VE.

____  2.       The ALJ erred in improperly relying upon the responses of the VE to an incomplete hypothetical question.

____  3.       The ALJ’s hypothetical question was not supported by the medical record.

____  4.       The ALJ’s hypothetical question failed to properly consider the claimant’s mental health limitations.

____  5.       The ALJ’s hypothetical question failed to elicit whether the claimant was able to engage in full-time work activity.

____  6.       The ALJ erred in relying on the testimony of the vocational expert, since it conflicted with the Dictionary of Occupational Titles (DOT).

____  7.       The ALJ erred in relying on VE testimony that the claimant could perform other work if the employer accommodates his/her disability.

____  8.       The ALJ erred in mischaracterizing the VE’s testimony.

L.    CHILDREN’S SSI CLAIMS

____  1.       The ALJ erred in determining the child claimant’s impairments did not meet the ____________ listing.

____  2.       The ALJ erred in determining that the child claimant’s impairments were not medically equal to the _____________ listing.

____  3.       The ALJ erred in determining that the child claimant’s impairments were not functionally equal to the _____________ listing.

____  4.       The ALJ erred in finding that the child claimant was not markedly impaired in two domains, and therefore was not disabled.

III. ERRORS IN EVALUATING SPECIFIC IMPAIRMENTS

A.   AMPUTATION

____  1.       The ALJ failed to properly evaluate the claimant’s amputation under Listing 1.10.

____  2.       The ALJ failed to properly determine the reasons the claimant had not obtained a prosthetic device.

____  3.       The ALJ failed to consider the claimant’s inability to afford a prosthetic device in evaluating his/her impairment under Listing 1.10.

B.   CHRONIC FATIGUE SYNDROME

____  1.       The ALJ erred in requiring objective findings in evaluating the impairment of Chronic Fatigue Syndrome.

____  2.       The ALJ erred in evaluating the claimant’s impairment of Chronic Fatigue Syndrome.

____  3.       The ALJ erred in failing to consider Section DI 24575.005 of the Program Operation Manual System (POMS) in evaluating the claimant’s Chronic Fatigue Syndrome.

C.   FIBROMYALGIA

____  1.       The ALJ erred in evaluating the claimant’s impairment of Fibromyalgia.

____  2.       The ALJ erred in finding that Fibromyalgia is not an objectively determinable medical condition which can be reasonably expected to produce disabling pain.

D.   MENTAL IMPAIRMENTS

____  1.       The ALJ erred in failing to develop the record regarding the claimant’s mental impairment.

____  2.       The ALJ erred in failing to properly analyze the claimant’s mental impairment.

____  3.       The ALJ erred in evaluating the severity of the claimant’s mental impairment and associated functional limitations.

____  4.       The ALJ erred in improperly determining that the claimant’s mental impairments only had a slight impact on his/her mental functioning.

____  5.       The ALJ erred in making internally inconsistent findings as to the extent of the claimant’s functional limitations caused by his/her mental impairment.

____  6.       The ALJ erred in failing to complete a Psychiatric Review Technique Form.

____  7.       The ALJ applied an incorrect legal standard in evaluating the claimant’s impairments under Listing 12.03 (Paranoid Schizophrenic and other Psychotic Disorders) by requiring that the episodes of deterioration or decompensation take place in a work or work-like setting.

____  8.       The ALJ applied an incorrect legal standard in evaluating the second prong of Listing 12.05 (Mental Retardation Listing).

E. OTHER IMPAIRMENTS

____  1.       ALCOHOLISM: The ALJ failed to properly analyze the effect of the claimant’s alcoholism, in light of the new laws and regulations, on the claimant’s disability.

”____ 2.       HYPERTENSION: The ALJ erred in determining that the claimant’s blood pressure is controlled by medication.

____  3.       MIGRAINE HEADACHES: The ALJ erred in requiring that the claimant’s migraine headaches be established by laboratory results.

____  4.       OBESITY: The ALJ erred in evaluating the claimant’s obesity.       

____  5.       SPEECH IMPAIRMENT: The ALJ erred in misinterpreting, and therefore misapplying, the requirements for Listing 2.09 (Impairment of Speech).

IV.  ADMINISTRATIVE REVIEW ERRORS

A.   RIGHT TO COUNSEL

____  1.       The ALJ violated the claimant’s statutory right to counsel.

____  2.       The ALJ erred in proceeding with the hearing despite the claimant’s failure to knowingly and intelligently waive his/her right to counsel.

B.   ALJ’S DUTY TO DEVELOP THE RECORD

____  1.       The ALJ failed to fully and fairly develop the medical evidence regarding the claimant’s ________ impairment.

____  2.       The ALJ failed to obtain all pertinent, available medical records which came to his/her attention during the course of the hearing.

____  3.       The ALJ neglected his/her duty to elicit testimony from family members.

____  4.       The ALJ erred in not ordering a consultative examination.

____  5.       The ALJ failed to develop evidence of the side effects of the claimant’s medications.

C.   THE CLAIMANT’S RIGHT TO EXAMINE THE EVIDENCE

____  1.       The ALJ deprived the claimant of due process by failing to provide him/her with the opportunity to subpoena and cross-examine those who submitted medical reports.

____  2.       The ALJ deprived the claimant of due process by not permitting the cross-examination of a post-hearing physician whose report the ALJ substantially relied upon in reaching his/her decision.

____  3.       The ALJ erred in not issuing a subpoena to obtain the records of the claimant’s former treating physician, whose records the claimant was unable to obtain.

D.   REOPENINGS

____  1.       The ALJ erred in failing to reopen the claimant’s prior application for benefits despite the inherently defective nature of SSA’s notice denying the prior claim.

____  2.       The ALJ erred in failing to reopen the prior claim since the claimant’s significant mental illness prevented him/her from asserting his/her appeal rights.

____  3.   The ALJ erred in failing to reopen the prior claim since s/he considered all of the evidence of the prior claim, and, in effect, reconsidered the merits of the prior claim.

E. ALJ BIAS

____  1.       The ALJ denied the claimant his/her right to a full and fair hearing.

____  2.       In light of the ALJ’s bias, this case should be heard by a different ALJ on remand.

F.    NEW EVIDENCE

____  1.       The Appeals Council erred in determining that additional evidence submitted by the claimant did not relate to the time period prior to the issuance of the ALJ decision.

____  2.       The court should remand this case pursuant to the sixth sentence of 42 U.S.C. § 405(g) due to the existence of new and material evidence and good cause for the failure to submit the evidence previously.

Sarah H. Bohr is an appellate attorney who has specialized in Social Security law for over twenty-five years. She is a partner in Bohr & Harrington, a Jacksonville, Florida law firm offering a national Social Security brief writing service.  She is past president of NOSSCR, past Chair of The Florida Bar Council of Sections, past Chair of the Public Interest Law Section, and past Chair of the Juvenile Court Rules Committee.  Ms. Bohr is the author of Social Security Issues Annotated, from which this article is excerpted.