Degenerative Disc Disease & Severe Mental Depression

“Plaintiff challenges the Administrative Law Judge’s decision to exclude his mental impairments from the [residual functional capacity] determination. He argues that although the ALJ provided an explanation for why he omitted Plaintiff’s mental conditions from the RFC determination, his reasoning for doing so relies upon significant mischaracterizations of the record.”


“The ALJ is responsible for determining a claimant’s RFC. 20 C.F.R. § 404.1546(c). When determining the RFC, the ALJ must review all of the relevant evidence and consider each of the claimant's medically determinable impairments whether or not severe. 20 C.F.R. § 404.1545(a)(1), (2).”

“The ALJ did not consider Plaintiff’s mental impairments in the RFC determination. Rather, the record suggests that the ALJ considered Plaintiff’s physical condition to the exclusion of his mental condition in the steps following step two of the analysis.”

The court also found that the ALJ mischaracterized the evidence.  The court remanded the case.

COMMENT

The ALJ must include non-severe impairments in determining the claimant’s residual functional capacity.  Therefore, in completing Social Security forms, the claimant must detail all his impairments, even if some of them, considered separately, may appear “non-severe” in terms of affecting his ability to work.

Aumann v. Commissioner of  Social Security, C. A. No. 13-10304 (D. E.D. Mich., S. Div., Jan. 9, 2014).  Available at: http://scholar.google.com/scholar_case?case=8853887695780749313&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

 

Knee, Shoulder & Back Pain

“The administrative law judge found that plaintiff’s severe impairments consist of chondromalacia of the patella and medial femoral condyle of the right knee, status postarthroscopy of right knee with partial medial meniscectomy, degenerative disc disease at L5-S2, cervical spondylosis with foraminal stenosis, ulnar nerve neuropathy of the right elbow, obesity, depression, and anxiety.” 

The claimant argued that the administrative law judge failed to evaluate the medical opinion of his doctor as is required by Social Security rules.  

“The administrative law judge characterized Dr. Lattavo as plaintiff’s ‘regular doctor’ and discussed Dr. Lattavo’s treatment notes. . . .However, the administrative law judge made no specific mention of Dr. Lattavo’s November 2011 opinion, she did not evaluate Dr. Lattavo’s opinion for controlling weight, nor did she consider the factors required by [case cited]. The administrative law judge’s [residual functional capacity] assessment also does not adequately reflect the limitations articulated by Dr. Lattavo. . . .”

“[T]here is no indication that the administrative law judge in this case even reviewed Dr. Lattavo’s November 2011 opinion. This Court therefore cannot determine if the administrative law judge intended to reject the opinion. . . . Even assuming, arguendo, that the administrative law judge did consider Dr. Lattavo’s opinion, the administrative law judge did not provide reasons ‘sufficiently specific to make clear to any subsequent reviewers’ the reasons for discounting Dr. Lattavo's opinion.”

The court remanded the case for further consideration of the doctor’s opinion.

Comment

Appeal an unfavorable decision.

France v. Commissioner Of Social Security, No. C.A. No. 2:13-cv-421 (D. S.D. Ohio, E.Div., Jan. 24, 2014), available at http://scholar.google.com/scholar_case?case=13365371143623950096&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Frequent and Occasional

Social Security has particular legal definitions of “frequent” and “occasional.”   

Applicants for Social Security disability should avoid terms which may be vague.  By providing as specific an answer as possible, applicants can avoid falling into a trap of using terminology which has a “legal” definition, unknown to them.

When asked how often a job task was performed, avoid saying frequently or occasionally.  Say instead that over the course of an eight-hour day, the job task was performed for so many minutes or hours.  If the job task was only performed once a month or on some other schedule, say so.  If the job task was only performed once in your six years with the company, say so.

Social Security defines the terms, frequent and occasionally as follows:

“Frequent” means occurring from one-third to two-thirds of the time.

“Occasionally” means occurring from very little up to one-third of the time.

See, http://www.socialsecurity.gov/OP_Home/rulings/di/02/SSR83-10-di-02.html

Physical Exertion

Physical exertion in Social Security Disability Cases

20 C.F.R. §404.1567  [See also,  §416.967]

To determine the physical exertion requirements of work in the national economy, we classify jobs as sedentary, light, medium, heavy, and very heavy. These terms have the same meaning as they have in the Dictionary of Occupational Titles, published by the Department of Labor. In making disability determinations under this subpart, we use the following definitions:

(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

(c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.

(d) Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.

(e) Very heavy work. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light and sedentary work.

Available at:

http://www.ecfr.gov/cgi-bin/text-idx?SID=b40119e568f095e3ded65d3091a09680&node=20:2.0.1.1.5.16.197.62&rgn=div8

Credibility

• Unexplained exertional activities

• Uncorroborated medication side effects

• Testimony inconsistencies with other statements

The claimant alleged that he was disabled because he suffered from “spontaneous pneumothorax, emphysema, anxiety, depression, heart problems, disfigured left index finger and hand, and learning disabilities.” 

On appeal, the federal district court rejected the claimant’s three arguments, including one based on the claimant’s subjective complaints.  The Arkansas court noted its precedent that a claimant’s credibility is primarily a matter for the Administrative Law Judge (ALJ) to decide.

Here the court recited Social Security rules that required the ALJ in considering the claimant’s subjective complaints to review all the evidence that related to: “(1) Plaintiff's daily activities; (2) the duration, frequency, and intensity of his pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of his medication; and (5) functional restrictions.”

Citing precedent, the court stated: “an ALJ may discount those complaints where inconsistencies appear in the record as a whole.”

The adjudicator at the Social Security hearing level found, among other facts, that the claimant mowed the lawn and, when presenting for medical care for “weakness/dizziness, and diaphoresis,” he had been out working in the heat “all day.” Additionally, the ALJ noted that “although Plaintiff alleged various side effects from the use of medication, the medical records, such as office treatment notes, did not corroborate those allegations.”

Further, the court stated that the “The ALJ considered Plaintiff's allegations of totally disabling pain, and evaluated his testimony in comparison with prior statements and other evidence.”

Comment

Based on the federal court decision, without the benefit of examining the entire case record, weaknesses in the claimant’s case included:

1.  Unexplained exertional activities such as mowing the lawn and doing work in the heat.

2.  Allegations of medication side effects not found in contemporaneous medical records.

3.  Inconsistencies between testimony and other statements in the case file.

James v. Colvin, No. 12-5249 (D. W.D. Ark., Feb. 19, 2014), available at http://scholar.google.com/scholar_case?case=4058420925286952982&q=james+v+colvin,+no.+12-5249&hl=en&as_sdt=40000006

Approval Rates 2001-2010

[According to a Social Security study:] “The final award rate for disabled-worker applicants has varied over time, averaging nearly 45 percent for claims filed from 2001 through 2010. The percentage of applicants awarded benefits at the initial claims level averaged 28 percent over the same period and ranged from a high of 37 percent to a low of 26 percent.” http://www.ssa.gov/policy/docs/statcomps/di_asr/2011/sect04.html#table59 

Introduction, 
How To Get Social Security Disability & SSI Disability

The Grammatical Rule of the Last Antecedent

When the five-step disability evaluation process reaches step 4, Social Security considers whether a claimant can do his past work.  When a claimant can do his past work, he is found not disabled.  When a claimant cannot do his past work, the analysis moves on to consider whether the claimant can do any other work.

In the 2003 decision, Barnhart v. Thomas, 540 U.S. 20, the U.S. Supreme Court approved Social Security’s finding that a claimant was not disabled because she could do her past work.

In making its determination at step 4, that the claimant could do her past relevant work, Social Security did not take into account whether the past work still existed in significant numbers.  The claimant Thomas had been an elevator operator (prior to the time her job was eliminated), and at the time her case was considered by Social Security (she applied in 1996), very few elevator operators’ jobs existed.

Thomas argued that, even if she could do an elevator operator’s job, Social Security should have found her disabled because very few elevator operators’ jobs existed in the national economy.

The part of the statutory language that Thomas relied on is shown in italics below:

“An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .” 42 USC §423(d)(2)(A).

Work which exists in the national economy is defined by the statute to mean work which exists in significant numbers either in the region where the individual lives or in several regions of the country.

In reviewing the actions of an administrative agency such as Social Security, if the intent of the statute is ambiguous, the courts tend to give deference to the agency’s interpretation of the statute, so long as the court finds the construction reasonable in light of the alternatives.

In this case, the Supreme Court agreed with Social Security that the phrase, “which exists in the national economy,” applied only to the second part of the paragraph, namely to “any other kind of substantial gainful work.”  “Any other work” is step 5 of the Social Security disability analysis.

 

Citing a treatise on statutory construction, the Supreme Court reasoned that the lower court had disregarded the grammatical rule of the last antecedent:

“[A]ccording to which a limiting clause or phrase (here, the relative clause ‘which exists in the national economy’) should ordinarily be read as modifying only the noun or phrase that it immediately follows (here, ‘any other kind of substantial gainful work’).”