Social Security Disability Practice
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Abbreviated Table of Contents
Preface: How to Use This Book and Other Tips for Improving Your Social
Security Disability Practice
1. Initial Client Contact
§100 “Disabled” — A Term of Art
§110 Determining Disability Under the Regulations and Rulings
§120 Medical-Vocational Guidelines
§130 Social Security Disability and SSI: Nondisability
Requirements and Other Differences
§140 Special Disability Programs
§150 Appeal Process
§160 Before Initial Interview
§170 Initial Interview
§180 After Initial Interview — Hearing Stage
§190 After Initial Interview — Below Hearing Stage
2. Prehearing Procedure
§200 Hearing Preparation — Theory of the Case
§210 Obtaining Medical and Other Documentation
§220 Obtaining and Dealing With Opinion Evidence
§230 Analysis of Medical Impairments
§240 Mental Impairments, Listings §§12.00-12.10
§250 Pain and Other Symptoms and Their Impact on Residual
Functional Capacity
§260 Proving a Case for a Claimant Under Age 50
§270 Preparation Tips
§280 Preparation Tips as the Hearing Date Approaches
§290 Preparing Witnesses to Testify
3. The Hearing
§300 Hearing Procedure
§310 Claimant’s Testimony
§320 Lay Witnesses
§330 The Government’s Medical Expert
§340 The Government’s Vocational Expert
§350 Closing Argument
§360 Post-Hearing Development
§370
Res Judicata, Administrative Finality and Reopening
§380 Deceased Claimants
§390 Hearing Checklist
4. Following a Favorable Decision
§400 Check the Decision and Contact Your Client
§410 Peculiar Problems in Concurrent Cases
§420 SSI Issues
§430 Calculating the Amount of Back Benefits
§440 Payment Issues
§450 Fleeing Felons
§460 Post-Entitlement Issues
§470 Overpayments
§480 Continuing Disability Review and Termination of Eligibility
for Disability Benefits
5. Appeals Council
§500 Appeals Council: The Decision to Appeal
§510 Requesting Review by the Appeals Council
§520 Arguing Your Case to the Appeals Council
§530 Substantive Issues
§540 Appeals Council Action on Favorable Decisions
§550 After Receiving an Appeals Council Denial Decision
§560 Appealing an ALJ Denial Decision After Federal Court Remand
6. Federal Court Review
§600 Considerations Prior to Filing
§610 Initiating the Civil Action: Procedure
§620 Post-Filing Procedure
§630 Practice Before
§640 Remedies: Remand and Reversal
§650 Substantive Issues
§660 If You Lose
7. Attorney’s Fees
§700 The Fee Agreement Process for Approval of Attorney Fees
§710 Payment of the Fee Under the Fee Agreement Process
§720 The Fee Petition Process
§730 Submitting a Fee Petition and Obtaining a Fee Authorization
From SSA
§740 Fee Issues Applicable to Both the Fee Agreement Process and
the Fee Petition Process
§750 Attorney Fees in Federal Court
§760 Equal Access to Justice Act (EAJA)
§770 The EAJA Time Limit
§780 EAJA Sample Pleadings
§790 Payment of EAJA Fees
Detailed Contents
Preface: How to Use This Book and Other Tips for Improving Your Social
Security Disability Practice
1. Initial Client Contact
§100 “Disabled” — A Term of Art
§101 Regulations and Rulings
§102 Statutory Definition
§103 Role of SSA’s Informal Policy Statements
§104 Role of Federal Court Decisions
§105 Acquiescence Rulings
§106 A Nonadversarial Administrative System
§107 Informal Procedures
§108 SSA: A Bureaucracy
§109 Citations
§110 Determining Disability Under the Regulations and Rulings
§111 Diagram: Disability Decision and Sequential Evaluation
Process
§112 The Sequential Evaluation Process — Overview
§113 Step 1: Substantial Gainful Activity
§114 Step 2: The Severity Step
§115 Duration Requirement
§116 Step 3: Listing of Impairments
§117 Step 4: Past Relevant Work
§118 Step 5: Other Work
§119 Summary and Exceptions
§120 Medical-Vocational Guidelines
§121 Maximum Residual Functional Capacity
§121.1 Chart: Maximum RFC Possible for Disability Finding
§122 Age
§123 Education
§124 Work Experience
§125 Full or Wide Range of Work
§125.1 Definition of Medium Work From SSR 83-10
§125.2 Definition of Light Work From SSR 83-10
§125.3 Definition of Sedentary Work From SSR 83-10
§126 RFC for Less Than Full Range of Sedentary Work
§126.1 Alternate Sitting and Standing From SSRs 83-12 and
96-9p
§127 Nonexertional Limitations
§128 Transferable Work Skills
§129 Medical Vocational Guidelines as Framework for Decision
Making
§130 Social Security Disability and SSI: Nondisability Requirements
and Other Differences
§131 Social Security Disability — Worker’s Insured Status
§132 SSI
§133 Retroactivity of Applications and Waiting Period
§134 Other Differences
§135 Chart: Social Security Disability and SSI Compared
§136 Eligibility of Aliens
§140 Special Disability Programs
§141 Social Security Disability — Disabled Adult Children
§142 Social Security Disability — Widow(er)s and Surviving
Divorced Spouses
§142.1 Form: Determining Prescribed Period and Controlling
Date for Widow’s Claim
§143 Social Security Disability — Blindness
§144 SSI Blind
§145 SSI Children
§150 Appeal Process
§150.1 Disability Service Improvement (DSI)
§151 Initial and Reconsideration Determination
§152 Hearing
§153 Differences Between State Agency Determinations and Hearing
Decisions
§153.1 Chart: State Agency and ALJ Disability Decisions
Compared
§154 Appeals Council Review
§155 Federal Court
§156 Diagram: The Appeal Process
§157 Diagram: How Long Does Appeal Process Take?
§158 Good Cause for Late Filing
§160 Before Initial Interview
§161 Office Policy Considerations
§162 One Approach to Dealing With Disability Cases
§163 Telephone Contact
§164 Literature for Prospective Clients
§164.1 Memorandum: Common Questions About Applying for
Disability Benefits
§165 Form: Social Security Disability Telephone Intake
§166 Form: Letter to Prospective Client
§167 Form: Claimant Questionnaire
§168 Form: Claimant Psychiatric Questionnaire
§169 Office Organization
§169.1 Databases
§169.2 Paralegals
§170 Initial Interview
§171 Observe the Claimant
§172 Determine Claim Type and Procedural Issues
§173 Use Denial Letters to Determine Why Claim Was Denied
§174 Analyze Claimant’s Answers
§174.1 Use Interview and Analysis Forms to Evaluate
Claimant’s Case
§175 Interview
§175.1 Form: Analysis
§176 Look for Problem Areas and Opportunities
§176.1 Onset Date
§176.2 Unsuccessful Work Attempts
§176.3 Working Claimants, Closed Period of Disability and
Trial-Work Period
§176.4 Prior Applications
§176.5 Cases Where SSA Deters Applying
§176.6 Receipt of Unemployment Compensation Benefits
§176.7
§176.8 Evaluate the Listing of Impairments
§176.9 Past Relevant Work
§176.10 Education
§176.11 SSI Issues: Gifts, In-Kind Support, Loans and Assets
§176.11.1 Form: Sample SSI Cash Loan Agreement
§176.11.2 Form: Sample In-Kind Loan Agreement (Living in the Household
of Another)
§176.11.3 Form: Sample In-Kind Loan Agreement With Person Outside the
Household (7th and 2nd Circuits Only)
§177 Begin Hearing Preparation at Initial Interview
§177.1 Educate Claimant About Disability Law
§177.2 Put Claimant at Ease About Hearing Process
§177.3 Record Claimant’s Strengths and Weaknesses as a
Witness
§177.4 Identify Potential Witnesses
§177.5 Daily Diary
§177.6 List Things to Do
§177.7 Form: Intake Action Sheet
§177.8 Form: Monthly Headache Diary
§178 Obtain Claimant’s Signature on Necessary Forms
§178.1 Consent Forms
§178.2 SSA Forms
§178.2.1 Form: Appointment of Representative (SSA 1696-U4)
§178.2.2 Form: Request for Hearing
§178.2.3 Form: Disability Report — Appeal
§178.2.4 Form: Authorization to Disclose Information to
the Social Security Administration
§178.2.5 Form: Consent for Release of Information
(SSA-3288)
§178.3 Attorney Fees Contract
§178.3.1 Form: Two-Tiered Fee Agreement
§178.4 Direct Payment of Attorney Fees
§178.4.1 Form: Request for Appointed Representative’s
Direct Payment Information
§178.4.2 Form: Identifying Information for Possible Direct
Payment of Authorized Fees
§178.4.3 Form: Request for Business Entity Taxpayer
Information
§179 Begin Keeping Time Records
§180 After Initial Interview — Hearing Stage
§181 Form: Letter to Claimant Following Initial Interview —
Hearing Stage
§182 Form: Initial Letter to Hearing Office (When Request for
Hearing Has Already Been Filed)
§183 Form: Initial Letter to Social Security Office (With
Alternative Language — Enclosing Request for Hearing or Request for Hearing
Filed Via Internet)
§184 Form: Letter to Social Security Office Transmitting Form
SSA-1695
§190 After Initial Interview — Below Hearing Stage
§191 Form: Letter to Claimant Following Initial Interview —
Below Hearing Level
§192 Form: Initial Letter to SSA — No Appeal Due, Case Below
Hearing Level
§193 Form: Initial Letter to SSA (With Alternative Language —
Enclosing Request for Reconsideration or Request for Reconsideration Filed
Via Internet)
§194 Form: Claimant’s Consultative Examination
2. Prehearing Procedure
§200 Hearing Preparation — Theory of the Case
§201 Obtaining a Copy of the File and
Submitting Evidence
§201.1 Obtaining a Copy of the File — Cases
Below the Hearing Stage
§201.2 Submitting Evidence — Cases Below the
Hearing Stage
§201.3 Obtaining a Copy of the File — Cases
at the Hearing Stage
§201.4 Submitting Evidence — Cases at the
Hearing Stage
§201.5 Working With an Electronic Disability
File
§202 Contents of the Disability File
§203 Section A: Payment Documents /
Decisions
§203.1 Disability Determination and
Transmittal
§203.2 Form: Disability Determination and
Transmittal (SSA-831)
§203.3 Form: POMS DI 26510.045 — Regulation
Basis Codes
§203.4 Chart: DDS Medical Specialty Codes
§204 Section B: Jurisdictional Documents and
Notices
§204.1 Denial Letters
§204.2 Request for Reconsideration and
Hearing
§205 Section D: Non-Disability Development
§205.1 Application for Benefits
§205.2 Full DIB Review Sheet (DIBWIZ)
§205.3 Sample: Full DIB Review Sheet
(DIBWIZ)
§205.4 Earnings Record and Insured Status
§205.5 Sample: Earnings Comp Determination
§205.6 Correcting an Earnings Record
§205.7 POMS RS 02201.008 — Exceptions to the
Statute of Limitations
§205.8 Form: Request for Correction of
Earnings Record (SSA-7008)
§206 Section E: Disability Related
Development
§206.1 Disability Report
§206.2 Work History Report
§206.3 Disability Report — Appeal
§206.4 Daily Activities Questionnaire
§206.5 Form: Disability Report (SSA-3368)
§206.6 Form: Disability Report — Field
Office (SSA-3367)
§206.7 Form: Work History Report
(SSA-3369-BK)
§207 Section F: Medical Records
§207.1 Residual Physical Functional Capacity
Assessment
§207.2 Form: Residual Functional Capacity
Assessment (SSA-4734)
§209 Form: Initial File Review Action Sheet
§210 Obtaining Medical and Other Documentation
§211 Hospital Records
§211.1 Veterans Administration Hospital
§212 Doctors’ Records
§212.1 Physicians, Osteopaths, Podiatrists, Optometrists
§212.2 Psychologists
§212.3 Chiropractors
§213 Physical and Occupational Therapists
§214 Pharmacies
§215 Insurance Carriers
§216 Former and Current Employers
§216.1 Form: Employment Questionnaire
§216.2 Form: Monthly Wage Information
§217 Vocational Rehabilitation Agencies
§218 Law Enforcement Agencies
§219 Other Sources
§219.1 Social Welfare Agencies
§219.2 Other Attorneys
§219.3 Schools
§220 Obtaining and Dealing With Opinion Evidence
§221 The Claimant’s Doctor
§221.1 Hearing Testimony by the Treating Doctor
§221.2 Taking the Doctor’s “Deposition”
§221.3 Specific Questions
§221.4 General Medical Report
§221.5 Medical Opinion Forms
§221.6 Form: Medical Source Statement of Ability to Do Work-Related Activities (Physical)
§221.7 Form: Medical Opinion Re: Ability to Do
Work-Related Activities (Physical)
§221.8 Form: Letter to Treating Source Transmitting RFC
Questionnaire
§221.9 Form: Medical Opinion Regarding Physical Capacity
for Work
§221.10 Memorandum: The Role of the Treating Doctor in Social
Security Disability Determinations
§222 State Agency Doctors
§223 Consultative Doctors — Hired by SSA
§224 Consultative Doctors — Hired by You
§225 Vocational Experts — Hired by You
§226 Vocational Experts Called by the ALJ
§227 Medical Expert
§230 Analysis of Medical Impairments
§230.1 Form: Bladder Problem Medical Source
Statement
§230.1.1 Form: Interstitial Cystitis Medical
Source Statement
§230.2 Form: Lupus (SLE) Medical Source Statement
§230.3 Form: Chronic Fatigue Syndrome Medical
Source Statement (Short Version)
§230.3.1 Form: Chronic Fatigue Syndrome Medical
Source Statement (Long Version)
§230.4 Form: Dizziness Medical Source Statement
§230.5 Form: Post-Cancer Treatment Medical Source
Statement
§231 Musculoskeletal System, Listings §§ 1.00-1.08
§231.1 Form: Listing §1.04A — Spinal Nerve Root
Compression
§231.1.1 Form: Listing § 1.02A — Major Dysfunction
of a Weight-Bearing Joint
§231.1.2 Form: Listing § 1.02B — Major Dysfunction
of a Major Peripheral Joint
§231.1.3 Form: Listing § 1.03 — Reconstructive
Surgery or Surgical Arthrodesis of a Major Weight-Bearing Joint
§231.1.4 Form: Listing § 1.04B — Spinal
Arachnoiditis
§231.1.5 Form: Listing § 1.04C — Lumbar Spinal
Stenosis
§231.2 Form: Lumbar Spine Medical Source Statement
§231.3 Form: Fibromyalgia Medical Source Statement
§231.4 Form: Arthritis Medical Source Statement
§231.5 Memorandum: Fibromyalgia, Chronic Fatigue
Syndrome, and Objective Medical Evidence Requirement for Disability
Adjudication
§231.6 Form: Cervical Spine Medical Source
Statement
§232 Special Senses and Speech, Listings §§
2.00-2.09
§232.1 Form: Meniere’s Disease Medical Source
Statement
§232.2 Form: Letter to Doctor re: Vision When
Claimant Limited to Sedentary Work
§232.3 Form: Vision Medical Source Statement
§232.4 Form: Vision Impairment Medical Source
Statement
§233 Respiratory System, Listings §§ 3.00-3.11
§233.1 Form: Pulmonary Medical Source Statement
§233.2 Form: Sleep Disorders Medical Source
Statement
§234 Cardiovascular System, Listings §§ 4.00-4.12
§234.1 Dealing With Exercise Tolerance Test
Results
§234.2
§234.3 Form: Cardiac Medical Source Statement
§234.4 Form: Cardiac Arrhythmia Medical Source
Statement
§235 Digestive System, Listings §§ 5.00-5.08
§235.1 Form: Crohn’s & Colitis Medical Source
Statement
§235.2 Form: Hepatitis C Medical Source Statement
§236 Hematological Disorders, Listings §§
7.00-7.17
§237 Skin Disorders, Listings §§ 8.00-8.08
§237.1 Form: Skin Disorders Medical Source
Statement
§238 Endocrine System, Listings §§ 9.00-9.08 and
Obesity
§238.1 Form: Diabetes Mellitus Medical Source
Statement
§238.2 Form: Obesity Medical Source Statement
§239 Neurological, Listings §§ 11.00-11.19
§239.1 Form: Seizures Medical Source Statement
§239.2 Form: Headaches Medical Source Statement
§239.3 Form: Stroke Medical Source Statement
§239.4 Form: Multiple Sclerosis Medical Source
Statement
§239.5 Form: Myasthenia Gravis Medical Source
Statement
§239.6 Form: Parkinson’s Disease Medical Source
Statement
§239.7 Form: Peripheral Neuropathy Medical Source
Statement
§239.8 Form: Postpolio Sequelae Medical Source
Statement
§239.9 Form: Reflex Sympathetic Dystrophy
(RSD)/Complex Regional Pain Syndrome (CRPS), Type 1 Medical Source
Statement
§240 Mental Impairments, Listings §§12.00-12.10
§241 Procedure for Evaluation of Mental Impairments
§241.1 Form: Psychiatric Review Technique (SSA-2506-BK)
§242 Mental Impairment “B Criteria” Outline
§242.1 Marked Restriction of Activities of Daily Living
§242.2 Marked Difficulties in Maintaining Social
Functioning
§242.3 Marked Difficulties in Maintaining Concentration,
Persistence or Pace
§242.4 Repeated Episodes of Decompensation, Each of
Extended Duration
§243 Practice Tips — Meeting the Mental Listings
§243.1 Form: Mental Impairment Questionnaire (Listings)
§244 Mental Retardation
§244.1 Onset Before Age 22
§244.2 An Additional Severe Impairment
§244.3 Equaling the Listings
§244.4 Borderline Intellectual Functioning
§245 Assessing Mental Residual Functional Capacity
§245.1 Chart: DSM-II Axis V
§245.2 Chart: DSM-IV Axis V
§245.3 Form: Medical Source Statement of Ability to Do Work-Related Activities (Mental)
§245.4 Form: Mental Residual Functional Capacity
Assessment (SSA-4734-F4-Sup)
§245.5 Form: POMS DI 24510.060 — DI 24510.065 Mental RFC
Assessment
§245.6 Form: POMS DI 25020.010 — Mental Limitations
§245.7 Form: Medical Opinion Re: Ability to Do
Work-Related Activities (Mental)
§245.8 Form: Mental Impairment Questionnaire (RFC &
Listings)
§245.9 Form: Mental Medical Source
Statement
§246 Evaluating Ability to Work Based
on Mental RFC
§247 Stress and Mental Impairments
§248 Somatoform Disorders
§248.1 Form: Somatoform Impairment
Questionnaire (RFC & Listings)
§249 Drug Addiction or Alcoholism
§249.1 Chart: Is Drug Addiction or
Alcoholism a Contributing Factor Material to the Determination of
Disability?
§249.2 Form: POMS DI 90070.050 Drug
Abuse or Alcoholism Material Determinations
§250 Pain and Other Symptoms and Their
Impact on Residual Functional Capacity
§251 Symptoms and the Severity Step
§252 Symptoms and the Listing of
Impairments
§253 A Medically Determinable
Impairment that Could Cause the Claimant’s Symptoms
§254 Evaluating the Intensity and
Persistence of Symptoms — The Role of Objective Evidence and Other
Evidence
§255 Issue: Is the Impairment
Reasonably Consistent With the Objective Evidence?
§255.1 Form: Doctor’s Opinion Re:
Consistency of Symptoms and Limitations
§256 Evaluation of Medical Opinions
§257 Credibility of the Claimant
§258 Impact of Symptoms on RFC
§259 Summary: Proof of Pain or Other
Symptoms
§260 Proving a Case for a Claimant Under Age 50
§261 Illiteracy
§262 Inability to Communicate in English
§263 Postural and Manipulative Limitations
§263.1 Manipulative Limitations
§263.1.1 Form: Manipulative Limitations Medical Source Statement
§263.2 Postural Limitations
§264 Visual Impairment
§265 Environmental Restrictions
§266 Mental Impairments
§267 Part-Time and Sporadic Work
§268 Some Additional Possibilities
§270 Preparation Tips
§271 Learn SSA’s Approach to Vocational Issues
§271.1 Chart: Physical Limitations and Their Effects on
Ranges of Work
§272 Form: POMS DI 25020.001 — Functional Limitations and Their
Effects on Ranges of Work — Physical and Environment Limitations
§273 Memorandum to Claimant Re: Working While Your Disability
Claim Is Pending
§274 Impairment-Related Work Expenses
§274.1 Memorandum Re: Impairment-Related Work Expenses
(IRWE)
§275 Obtain Information From Your Client
§276 Form: Letter to Client re: Hearing Date
§277 Form: Recent Medical Treatment and Examination
§278 Imperfect Medical Compliance and Failure to Follow
Prescribed Treatment
§280 Preparation as the Hearing Date Approaches
§281 Ask for a Prehearing Conference
§282 Request an On-the-Record Favorable Decision
§283 Never Waive a Hearing
§284 Request Subpoenas
§285 Submit Additional Evidence
§285.1 Office Instructions for Submitting Hearing Exhibits
§286 Prepare a Hearing Brief or Proposed Decision
§286.1 Form: Proposed Findings and Decision
§286.2 Form: Prehearing Memorandum Worksheet
§286.3 SSA’s Findings Integrated Template (FIT)
Instructions
§286.4 FIT Template: Adult Fully Favorable Proposed
Decision
§287 Prepare Notes for the Hearing
§288 Form: Social Security Hearing Sheet
§289 Objections to Hearing Issues
§290 Preparing Witnesses to Testify
§291 Form: Activities Questionnaire
§292 Preparing Your Client to Testify
§292.1 Allay Your Client’s Fears
§292.2 Explain the Theory of the Case
§292.3 Explain the Hypothetical Nature of Disability
Evaluation
§292.4 Minimize Medical Testimony From the Claimant
§292.5 Neither Exaggerate Nor Minimize Testimony About
Pain or Limitations
§292.6 Avoid Rehearsing Testimony
§292.7 Encourage Testimony Filled With Examples and
Anecdotes
§292.8 Explain the Mechanics of Issuing a Written Decision
§292.9 Rules for Testifying
§293 Memorandum: Testifying at Your Disability Hearing
§294 The Importance of Lay Witness Testimony Is Recognized by
SSA and the Courts
§295 Arrange for Lay Witness Testimony
§296 Sample: Letter to Lay Witness
§297 Written Statements From Lay Observers
§297.1 Form
§297.2 Content
§297.3 Illustration
§297.4 Other Tips
§297.5 Sample: Memorandum on Preparing a Letter for Use In
a Disability Claim
§297.6 Sample: Memorandum on Preparing a Letter for Use In
a Disability Claim Involving a Mental Impairment
§298 Prehearing Checklist
3. The Hearing
§300 The ALJ Hearing
§300.1 Disability Service Improvement (DSI)
§301 Prehearing Orders
§302 Issues
§303 Just Before the Hearing
§304 Hearing Procedure
§304.1 ALJ’s Opening Statement
§304.2 Video Hearings
§304.3 Persons Present in the Hearing Room
§304.4 Making Your Own Recording of the Hearing
§304.5 Objections to ALJ’s Questions
§305 Objections to Exhibits
§305.1 Unsigned “Reports of Contact” With Physicians
§305.2 Denial of Right to Cross-Examine Authors of Adverse
Medical Reports
§305.3 Consultative Physician Reports
§306 Claimant Representative’s Opening Statement
§307 Order of Testimony
§308 Claimant’s Experts
§310 Claimant’s Testimony
§311 Background, Age, Education and Vocational Training
§312 Work Experience
§313 Medical History
§314 Current Treatment
§315 Physical Symptoms
§315.1 Pain
§315.2 Shortness of Breath
§315.3 Fatigue
§316 Mental Symptoms
§316.1 Use DSM-IV as an Outline for Questioning
§316.2 Stress
§317 Mental Residual Functional Capacity
§318 Physical Residual Functional Capacity
§318.1 Sitting
§318.2 Alternate Sitting, Standing and Walking
§318.3 Standing
§318.4 Walking
§318.5 Lifting and Carrying
§318.6 Postural Limitations
§318.7 Manipulative Limitations
§318.8 Traveling
§318.9 Good Days/Bad Days
§319 Daily Activities
§319.1 Background and General Description
§319.2 Activities of Daily Living
§319.3 Social Functioning and Leisure Activities
§319.4 Personal Care
§319.5 Examples of Limited Activities
§320 Lay Witnesses
§321 Limit the Number of Witnesses
§322 Screen Witnesses and Pick the Best
§323 Prepare Witnesses But Do Not Rehearse Testimony
§324 Seek Testimony From Observation; Avoid Conclusory Testimony
§325 Corroborative Testimony
§326 Before and After Testimony
§327 Anecdotal Testimony
§327.1 Seizures
§327.2 Breathing Impairment
§327.3 Pain
§328 Interference With Work
§328.1 Coworker Testimony
§328.2 Company Disability
§330 The Government’s Medical Expert
§331 Purpose of Medical Expert Testimony
§332 Procedure
§333 ALJ’s Direct Examination of Medical Expert in a Mental
Impairment Case
§334 Critique and Objections to ALJ’s Direct Examination
§335 Meeting the Listings
§336 Equaling the Listings
§337 Residual Functional Capacity Testimony
§340 The Government’s Vocational Expert
§341 Vocational Issues
§342 Proper ALJ Questions to VE
§343 Improper ALJ Questions to VE
§343.1 Failure to Use Hypothetical Questions
§343.2 Qualifying a VE to Interpret Medical Records
§344 Improper VE Testimony
§344.1 Americans With Disabilities Act — Associate
Commissioner’s Memorandum
§345 Prepare Your Own Hypothetical Questions for the VE
§346 Use of Dictionary of Occupational Titles (DOT)
§346.1 Physical Exertion Levels
§346.2 DOT Specific Vocational Preparation and Skill Level
§346.3 Example of the Use of the DOT: Nurse Assistant
§346.4 Pages From DOT
§346.5 Example of the Use of Materials That Supplement the
DOT: Surveillance System Monitor
§346.6 The DOT and Sedentary Work
§346.7 Some Popular Jobs Which Are Not Sedentary Unskilled
Jobs in the DOT
§346.8 Use of the DOT in Cross-Examining a Vocational
Expert
§346.9 Submit a Rebuttal Opinion
§347 Past Relevant Work
§347.1 Make Sure the Prior Job Really Was Relevant Work
§347.2 The Functional Demands and Job Duties of the
Occupation as Generally Required by Employers Throughout the National
Economy
§347.3 When a VE Testifies That a Claimant Can Do His
Former Job as He Performed It
§347.4 A Past Job Need Not Exist
§347.5 Burden of Proof
§348 Using the Grids as a Framework for Decision Making
§348.1 Erosion of the Occupational Base
§348.1.1 Chart: Analysis of the Light Occupational Base
§348.1.2 Chart: Unskilled Light Occupations — Manipulative
Limitations
§348.2 Basic Rules for Using the Medical-Vocational
Guidelines as a Framework for Evaluating Cases Involving Exertional
Impairments
§348.3 Using the Medical Vocational Guidelines for
Evaluating Impairments of Claimants Under Age 50
§348.4 The RFC of Alternate Sitting and Standing
§348.5 Using the Medical-Vocational Guidelines as a
Framework for Evaluating Solely Nonexertional Impairments
§348.6 Court Decisions on Framework Analysis
§348.7 Questions to the Vocational Expert Laying a
Foundation for Argument Concerning Using the Grids as a Framework
§348.8 Questions for Vocational Expert About Numbers of
Sedentary Unskilled Jobs Within Claimant’s RFC
§348.8.1 Form: Request for Subpoena Duces Tecum
to Vocational Expert With Attachment
§348.9 Questions for the Vocational Expert About the RFC
for Alternate Sitting and Standing
§349 Transferable Skills
§349.1 Definition of Skill
§349.2 No Skills Develop From Unskilled Work Nor May
Skills Be Transferred to Unskilled Work
§349.3 Skills vs. Traits
§349.4 Skills Acquired vs. Skills Transferable
§349.5 Determining Transferability
§349.6 Different Standards of Transferability for
Different Ages
§349.7 Examples of Jobs Discussed in SSR 82-41
§349.8 A Significant Range of Work
§349.9 Questions for the Vocational Expert About
Transferable Skills
§350 Concluding the Hearing and Closing the Record
§351 Closing Argument by Claimant’s Representative
§352 ALJ’s Closing Statement
§353 Post-Hearing Development
§354 Close the Record
§355 Consultative Exam Ordered by ALJ
§356 Post-Hearing Interrogatories to Medical or Vocational
Expert
§357 Proffer to Attorney
§358 Right to Cross-Examine Authors of Adverse Post-Hearing
Reports
§359 Inquiries About Status
§360 ALJ Decision and After
§361 Bench Decision
§362 Bench Decision Checksheet (Form)
§363 Submit a Proposed Decision to the ALJ
§364 Writing a Favorable Decision at the Request of the ALJ
§365 Submitting New Evidence to the ALJ After a Denial Decision
§370
Res Judicata, Administrative Finality and Reopening
§370.1 Overview
§370.2
Res Judicata and Administrative Finality Compared
§371 The Time Limit
§372 Reopening for “Any Reason” Within Twelve Months
§373 Reopening for Good Cause
§373.1 New and Material Evidence
§373.2 Clerical Error
§373.3 Error on Face of Evidence
§374 Reopening at Any Time
§375 Jurisdiction to Reopen
§376 Implied Request for Reopening
§377
Res Judicata Dismissals
§378 Circumstances Where Res Judicata Does Not Apply
§379
Res Judicata or Administrative Finality Invoked by Claimants
§380 Deceased Claimants
§381 Social Security Disability Substitute Parties
§382 SSI Substitute Parties
§383 Form: Notice Regarding Substitution of Party Upon Death of
Claimant (HA-539)
§384 Form: Claim for Amounts Due in the Case of a Deceased
Beneficiary (SSA-1724)
§390 Hearing Checklist
§391 At the Hearing
§392 After the Hearing
4. Following a Favorable Decision
§400 Check the Decision and Contact Your Client
§401 Favorable Decision Checklist
§402 Form: Favorable Decision Summary/Worksheet
§403 Sample: Letter to Title II Claimant After Receipt of
Favorable Decision
§404 Sample: Letter to Concurrent Claimant After Receipt of
Favorable Decision
§404.1 Sample: Letter to Concurrent Claimant After Receipt
of Favorable Decision — SSI Stops
§404.2 Sample: Letter to SSI-Only Claimant After Receipt
of Favorable Decision
§405 Sample: Letter to Social Security Office Requesting Copies
of SSI Notices
§406 Sample: Letter to ALJ re: Failure to Issue Order Approving
or Disapproving Fee Agreement
§407 Sample: Notice of Intent to File Fee Petition
§408 The Bad Address Problem
§409 Amending the Decision
§410 Peculiar Problems in Concurrent Cases
§411 The Odd Way That SSA Processes SSI When There Are
Concurrent Applications
§412 Check for SSI Eligibility During the Five-Month Waiting
Period During Which No Social Security Disability Benefits Are Payable
§413 Determining SSI Eligibility After the Five-Month Waiting
Period
§414 Consider the State Supplement
§415 The Impact of Welfare Recoupment
§416 The Strange Case of the SSI Eligible Couple
§417 What Is the Lawyer’s Duty to Advise Withdrawing an SSI
Application?
§418 Form: Request for Withdrawal of Application (SSA-521)
§419 SSI Benefits Should Be Recalculated After Payment of
Attorney Fees
§420 SSI Issues
§421 SSI Income: Anything in Cash or In-Kind
§422 In-Kind Support and Maintenance
§423 The One-Third Reduction Rule: Living in Another Person’s
Household
§424 The Presumed Value Rule
§425 Informal Cash and In-Kind Loans
§426 POMS SI 01120.220C — Policy — Requirements for a Bona Fide
Informal Loan
§427 POMS SI 00835.482A and B — Loans of In-Kind Support and
Maintenance
§428 Retrospective Budgeting
§429 Installment Payment of SSI Back Benefits
§430 Calculating the Amount of Back Benefits
§431 Form: Past-Due Benefits or Attorney Fees Worksheet
§432 Date of Entitlement
§433 Claimant’s Benefit Amount
§434 Auxiliary Benefits
§435 Closed Period
§436 Disabled Widow(er)’s Benefits
§437 Workers’ Compensation and Public Disability Benefit Offset
§438 Only Certain Public Disability Benefits Are Included in the
Offset Calculation
§439 Suspension of Payment When the Claimant Goes to Jail
§440 Payment Issues
§441 When It Takes Too Long for Benefits to Be Paid
§442 Dealing With SSA by Telephone
§443 Underpayments
§444 Chart: OCO Inquiries and Manager Telephone and Fax Numbers
§445 Chart: Program Service Center Addresses and SSN
Jurisdiction
§446 Chart: Program Service Center Phone Numbers
§450 Fleeing Felons
§460 Post-Entitlement Issues
§461 Memorandum to Claimant Re: Working Part-Time After You’ve
Been Found Disabled by SSA
§470 Overpayments
§471 A Legal Challenge to the Overpayment — Appeal
§472 Request Waiver of the Overpayment
§473 Fault
§474 Defeat the Purposes of Title II/Title XVI
§475 Against Equity and Good Conscience
§476 Overpayment Recovery Questionnaire
§477 Form: Request for Waiver of Overpayment Recovery or Change
in Repayment Rate
§478 Adjustment or Recovery of Overpayment
§479 Compromise Payment
§480 Continuing Disability Review and Termination of Eligibility for
Disability Benefits
§481 Benefit Continuation
§482 Face-to-Face Reconsideration Hearings
§483 The Continuing Disability Review Evaluation Process —
Overview
§484 Chart: CDR Evaluation Process Summary Chart From POMS DI
28005.010
§485 Points of Comparison and Cessation Month
§485.1 Chart: Cessation Month POMS DI 28005.205
§486 Is There Medical Improvement?
§487 Is Medical Improvement Related to Ability to Work?
§488 Exceptions to Medical Improvement
§489 When Medical Improvement Is Found Related to Ability to
Work
§489.1 Chart: Is DAA Material? From POMS DI 28005.040
§490 Cessation of Benefits Because of Performance of Substantial
Gainful Activity
§491 Recipient Eligible for Trial Work Period?
§492 Will SSA Conduct Medical Review During Trial Work Period?
§493 At Conclusion of Trial Work Period
§494 Extended Period of Eligibility/Reentitlement Period
§495 Expedited Reinstatement
§496 Working SSI Recipients
5. Appeals Council
§500 Appeals Council: The Decision to Appeal
§501 The Final Step of Administrative Review
§501.1 Decision Review Board
§502 Exhaustion of Administrative Remedies
§503 Develop a Legal Theory for the Appeal
§503.1 OHA’s List of Recurring Disability Issues in
Appeals Council Remands
§504 The Unwritten Harmless Error Rule
§505 Should You Always Appeal?
§506 Starting Over With a New Application
§507 Filing a New Application While the Earlier Application Is
Pending at the Appeals Council
§507.1 A Subsequent Application Pending Before SSA While
the Earlier Application Is Pending in Federal Court
§507.2 Subsequent Application Practice Tips
§508 Appealing the Partially Favorable Decision
§510 Requesting Review by the Appeals Council
§511 Time Limit for Requesting Appeals Council Review
§512 Form: Request for Review of Hearing Decision
§513 Extension of Time to Request Review
§514 Extension to Submit Evidence and a Brief
§515 Dealing With the Appeals Council by Mail or Fax
§515.1 Appeals Council Branch, Circuit Jurisdiction & Fax
Numbers
§516 Obtaining Evidence From the Appeals Council
§520 Arguing Your Case to the Appeals Council
§521 Uses of the Hearing Recording
§522 Official and Unofficial Oral Argument
§523 Standards for Appeals Council Review
§523.1 Abuse of Discretion
§523.2 Error of Law
§523.3 Substantial Evidence
§524 Submitting New Evidence to Appeals Council
§525 Effective Briefing
§525.1 Be Brief
§525.2 Emphasize Legal Error But Argue Facts
§525.3 Tell a Story
§525.4 Argue that Substantial Evidence Does Not Support
the Decision
§525.5 Focus Your Argument: Summarize, Explain and
Conclude
§525.6 Write for Your Audience: The Analyst and the ALJ
§525.7 Address All the Issues
§525.8 Write Clearly and Concisely
§526 Remand Policy
§527 Sample Briefs
§527.1 Sample Brief: Transferable Skills
§527.2 Sample Brief: Substantial Gainful Activity
§527.3 Sample Brief: Due Process
§527.4 Sample Brief: Using the Grids as a Framework
§527.5 Sample Brief: Substantial Evidence — Date Last
Insured 12/77
§528 Form: Disability Case Fact Sheet (HA-52)
§529 Form: Disability Case Analysis and Recommendation (HA-52A)
§530 Substantive Issues
§531 Reopening by the Appeals Council at the Claimant’s Request
(HALLEX I-3-9)
§532 Dealing With ALJ Dismissals
§540 Appeals Council Action on Favorable Decisions
§541 Own Motion Review
§542 Reopening by the Appeals Council
§550 After Receiving an Appeals Council Denial Decision
§551 FOIA/Privacy Act Requests to Appeals Council
§552 Extension to File in Federal Court
§553 When AC Fails to Consider Brief or New Evidence
§560 Appealing an ALJ Denial Decision After Federal Court Remand
6. Federal Court Review
§600 Considerations Prior to Filing
§601 Is There a Final Decision of the Commissioner?
§602 Standard of Review
§603 The Role of the Federal Courts
§604 Analyzing the Case
§610 Initiating the Civil Action: Procedure
§611 Filing and Service of Summons and Complaint
§611.1 Addresses for Service of Process on Commissioner
§612 Sample: Complaint
§613 Filing
In Forma Pauperis
§614 Sample: Application and Affidavit for Leave to Proceed
In Forma Pauperis
§615 Sample: Order Granting Leave to Proceed In Forma
Pauperis
§616 Filing Checklist
§617 Service Checklist
§618 Calendar Tips
§620 Post-Filing Procedure
§621 Answer
§622 Motion for Summary Judgment Under Sentence Four of 42
U.S.C. §405(g)
§623 Motion for Remand for Consideration of New Evidence
§624 Effective Briefing
§625 Research Tips
§630 Practice Before U.S. Magistrate Judges
§631 Whether to Consent to Magistrate Judge Jurisdiction
§632 Specific Objections Required to Magistrate Judge
Recommendation
§633 Time Limit for Objections to Magistrate Judge
Recommendation
§640 Remedies: Reversal With and Without a Remanding for Rehearing
§641 Reversal Without Remanding for a Rehearing
§642 Voluntary Remand and Remand Instead of Default Judgment
§643 Remand to Evaluate New Evidence
§644 Sentence-Four Reversals With Remanding for a Rehearing
§645 Appealability of Remand Orders
§646 Procedure at SSA on Remand
§647 Court Procedure Following Sixth Sentence Remand
§648 Court Procedure Following Fourth Sentence Remand
§650 Substantive Issues
§651 The Law of the Case
§652 Treatment of Evidence Submitted to Appeals Council
§653
Post Hoc Rationalizations
§660 If You Lose
§661 Rule 59(e) Motion
§662 Appeal to Court of Appeals
7. Attorney’s Fees
§700 The Fee Agreement Process for Approval of Attorney Fees
§701 Conditions for Fee Agreement Process
§702 The Lesser of 25 Percent of Past-Due Benefits or $6,000
§703 Possible Additional Fee Agreement Provisions
§704 Timely Submission of the Fee Agreement to SSA
§705 Exceptions to the Fee Agreement Process
§706 Approval of Fee Agreement
§707 Administrative Review if the Decision Maker Disapproves the
Fee Agreement
§708 Changing the Terms of a Fee Agreement
§709 Law Firms, Paralegals and Multiple Representatives
§710 Payment of the Fee Under the Fee Agreement Process
§711 Notice and Right to Object
§712 Procedure on Administrative Review of the Fee
§713 Objection by the Decision Maker
§714 Objection by the Claimant or Auxiliary
§715 Objection by Attorney
§716 Problems With Partially Favorable Decisions
§716.1 Problems With Subsequent Applications
§717 Avoid Excessive Fees
§718 Erroneous Fee Payments
§719 If You Are Fired or Withdraw
§720 The Fee Petition Process
§721 The Myth of the 25% Limit on Attorney Fees
§722 Summary of Fee Petition Process Rules
§723 Possible Fee Arrangements
§724 Fees May Be Paid in Advance
§725 SSA’s Rules for Evaluating a Fee Request
§726 SSA’s Rules Are Insufficient to Determine a Fee
§730 Submitting a Fee Petition and Obtaining a Fee Authorization From
SSA
§731 Keep Good Time Records
§732 How to Submit a Fee Petition
§733 Form: Petition to Obtain Approval of a Fee for Representing
a Claimant Before the Social Security Administration
§734 Where to Send a Fee Petition
§734.1 Form: Fee Petition Transmittal Flag
§735 When to Submit a Fee Petition
§736 Wait for Payment of Auxiliary Benefits
§737 Submit a Written Argument for Approval of Fee
§738 Obtaining Fees in Excess of $7,000
§739 Appealing a Fee Authorization
§740 Fee Issues Applicable to Both the Fee Agreement Process and the
Fee Petition Process
§741 How to Calculate Past-Due Benefits
§742 Payment of Attorney Fees in SSI Cases
§743 Calculating a Percentage Fee in an SSI Offset Case
§744 Other Offsets
§745 Obtaining Reimbursement for Expenses
§746 Fee Approval Regulations Do Not Apply in All Circumstances
§747 Coping With SSA’s Failure to Withhold Attorney Fees
§748 The User Fee
§750 Attorney Fees in Federal Court
§751 A 25-Percent Limit on Attorney Fees in Federal Court
§752 To Set a Fee, Federal Courts Look First to the Contingent
Fee Contract, Then Test It for Reasonableness
§753 Attorney Fees in SSI Cases Are Regulated
§754 Coping With SSA’s Failure to Withhold and Pay
Court-Approved Attorney Fees
§755 Fees for Representation Before Both the Federal Court and
SSA
§756 Maximizing Your Fee and Minimizing Bureaucratic Hassle
§757 Sample: Motion for Authorization of Attorney Fees
§758 Form: Federal Court Fee Agreement
§760 Equal Access to Justice Act (EAJA)
§761 Legislative History of the EAJA
§762 Prerequisites for Awarding Attorney Fees
§763 Prevailing Party
§764 Meaning of “Substantially Justified”
§765 Calculation of Attorney Fees and Expenses Paid Under EAJA
§766 EAJA Fees for Time Spent Representing Claimant on Remand
§767 Time on EAJA Motion and Appeal of EAJA Denial
§768 Applications for Fees Under EAJA and 42 U.S.C. § 406
§769 Attorney’s Duty to Bring EAJA Applications in Appropriate
Case
§770 EAJA Time Limit
§771 Court Reversal With or Without Remand for Rehearing
Pursuant to Sentence Four of 42 U.S.C. §405(g)
§772 Court Reversal With or Without Remanding for Rehearing
Based Upon a U.S. Magistrate Judge Recommendation
§773 Stipulated Reversal With or Without Remanding for Rehearing
§774 Remands Under the Sixth Sentence of 42 U.S.C. §405(g)
§775 Circuit Court of Appeals Cases
§780 EAJA Sample Pleadings
§781 Sample: EAJA Motion for Award of Attorney Fees (Fourth
Sentence Remand)
§782 Sample: Plaintiff’s Affidavit and Assignment of EAJA Fee
§783 Sample: Plaintiff’s Attorney’s Affidavit (Fourth Sentence
Remand)
§784 Sample: Memorandum Supporting EAJA Motion
§785 Sample: Motion for Judgment (Sixth Sentence Remand)
§786 Sample: EAJA Motion for Award of Attorney Fees (Sixth
Sentence Remand)
§787 Sample: Plaintiff's Attorney's Affidavit (Court Reversal
Case Also Asking for Approval of 42 U.S.C. § 406(b) Fees)
§788 Sample: Plaintiff's Attorney's Affidavit (Sixth Sentence
Remand)
§790 Payment of EAJA Fees
§791 Payment by Mandatory Direct Deposit
§792 Dealing With Payment Delays
§792.1 EAJA Fee Payment Contacts
§793 Payment of Costs and Expenses
§794 Form: Attorneys and Legal Organizations ACH
Vendor/Miscellaneous Payment Enrollment Form
Appendices
1. Guide to Important Social Security
Rulings and Acquiescence Rulings
2. Sources of Information
3. Dictionary of Occupational Titles
4. Vocational Expert Self-Study Guide,
Part 4, The Hearing
5. Unskilled Sedentary Occupations
6. Definitions
7. Social Security Administration
Telephone Numbers and Addresses
8. Vocational Expert Handbook, pp. 9-25
9. Medical Expert Handbook, pp. 11-29
10. “Professional Responsibility and Social
Security Representation: The Myth of the State-Bar Bar to Compliance With
Federal Rules on Production of Adverse Evidence,” by Robert E. Rains, 92
Cornell Law Review 363 (2007), used with permission.
11. Glossary
12. Annual SSI, Medicare, COLA, SGA, TWP and
Earnings for QC Amounts Since 2000
Index
Updated 01/09/12
