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Social Security Disability Practice Back to the book page To quickly search for key terms, use your browser's 'Find' function, found in the 'Edit' menu.
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 07/15/10