Because you are disabled.

File for disability benefits.

Appeal your case.

How you presented your initial application was the best you could do at that time given what you knew and were told.

But, if you were not successful, appeal (1) because you are disabled and (2) because you can improve on your presentation.

Saturday, March 29, 2014

Borderline Intellectual Functioning versus Mental Retardation, Reading Disorder and Degenerative Disc Disease of the Thoracic Spine.

The issues on appeal to the district court were whether the Administrative Law Judge failed to consider the functional limitations found by a nurse practitioner and whether the claimant met or equaled Listing 12.05C

The magistrate judge concluded that the ALJ was under the mistaken belief that because the nurse practitioner was not “an acceptable medical” source, he did not need to evaluate her opinion.  Citing the regulations and Social Security Ruling 06-03p, the court noted that although only an opinion from an acceptable medical source may be given controlling weight, evidence from such a source may be used to demonstrate the severity of an impairment or how it impacts that individual’s ability to function.  Failure to evaluate the nurse practitioner’s opinion meant that the ALJ did not consider all the evidence in the record.

On the issue of meeting the requirements of Listing 12.05C, the court stated that the ALJ:  “chose to credit the 2008 IQ test scores over those of the other two tests which placed Stewart in the mildly retarded range. However, in reaching that decision the administrative law judge did not discuss Stewart's education records or previous IQ test results.”

The district court stated that: “The Listing also requires that deficits in adaptive functioning appear during the developmental period. The records from New Lexington City Schools make it very clear that this was the case.”

The court found that: “In addition, the Listing requires an additional and significant limitation of function and Stewart's back problem is the obvious deficit to be analyzed here. . . .Thus there really is no legitimate question at all that Stewart had degenerative disc disease of the thoracic spine, and that it is a significant work-related functional deficit.” 

The judge reviewed the ALJ’s reliance on activities of daily living in his denial of the disability claim, but cautioned:

“One must be careful in accepting as true what persons with mental and/or intellectual deficits say they can do, because, incredibly, they sometimes lose track of the fact that the requested finding is one of disability, not enhancement of self-worth. So one must investigate a statement by a claimant that he can, for instance, mow the lawn, with qualifiers, such as (1) over what distance? (2) with what type of mower? (3) how long without breaks? and (4) with what degree of objective success?”

In recommending that the case be remanded, the magistrate judge stated that the ALJ’s “decision is not supported by substantial evidence.”


The language in this magistrate judge’s opinion about how the claimant described his activities of daily living is insightful. 

Too many disability claimants hold back the truthful details of their limitations.  

See the chapter, Talk Like a Disabled Person, in HOW TO GET SOCIAL SECURITY DISABILITY & SSI DISABILITY.

Stewart v. Commissioner of Social Security, Civil Action No. 2:13-cv-741 (D. S.D. Ohio, E. Div., Mar. 7, 2014)

Thursday, March 27, 2014

Rheumatoid Arthritis, Hypothyroidism, Migraine Headaches, Fibromyalgia, Right Lung Lesion and Cervical Spondylosis.

The claimant raised two issues in her appeal:  whether the Administrative Law Judge erred in considering her pain and credibility and in evaluating the state agency medical opinions.

The court was satisfied that the ALJ “assessed the totality of the medical evidence as presented to him in evaluating whether Plaintiff’s testimony regarding her pain was consistent with the medical records.”  The court reported the conclusions of the ALJ’s opinion:

“Plaintiff’s and her husband’s statements of record reveal that Plaintiff engages in more daily activities than she testified. . . . For example, the ALJ noted, Plaintiff independently cares for her personal needs, provides care to their cat, cooks large batches of food to freeze, reads, watches television, uses a computer for email, drives, and accompanies her husband to the store at times. .  . . The ALJ noted that Plaintiff told a consulting psychologist that her average day consists of watching television and performing light housekeeping chores.  . . . According to the ALJ, if Plaintiff experienced [headache] and muscle/joint pain at the frequency and severity alleged, she would not be able to engage in these activities.” 

The ALJ also cited medical records “that her migraines were responsive to the prescription medication Imitrex.”

The court also found that the ALJ’s reliance on the state agency medical opinions was consistent with objective medical findings of the claimant’s treating physician and the claimant and her husband’s statements of record describing the claimant’s activities of daily living and lifestyle.

The court affirmed the ALJ’s decision.


The details of the claimant’s testimony at the hearing were not included in the district court’s opinion.  It may very well be that the claimant testified that she did less than watch television and less than “light housekeeping.”  However, if the claimant testified that on an average day, she watched television and performed light housekeeping chores, that testimony would not necessarily be inconsistent with the chores enumerated in the ALJ’s decision that the claimant “provides care to their cat, cooks large batches of food to freeze, reads, watches television, uses a computer for email, drives, and accompanies her husband to the store at times.”   

Because activities of daily living will be evaluated, claimants must take great care in completing the various Social Security forms.  Claimants must provide extensive detail and must use more space than Social Security allocates on its forms (that is, claimants must attach additional sheets of paper).

The term “light housekeeping” is too vague to be useful. Detailed answers to Social Security forms 3373 and 3441 provide guidance for housekeeping aspects of activities of daily living.

It is important to explain as noted in HOW TO GET SOCIAL SECURITY DISABILITY & SSI DISABILITY when you spend 10 or 30 minutes doing something whether you do the task in several segments, that is, 10 or 30 minutes, but over the course of two hours, where you rest after each step in the process.

In this case, for example, what does care of the cat entail?  Is the cat an outdoor cat? Does the cat eat dry food only? Do other family members also care for the cat? Does care of the cat mean sitting while the cat purrs in the claimant's lap?

Does anyone assist the claimant in cooking large batches of food to freeze? What kind of food is cooked and frozen?  How heavy is the food? Why does the claimant cook food and freeze it? How often is the food cooked? 

How much time in minutes and hours does the claimant spend watching television, reading or using a computer?  Does she sit or lie in bed when doing these activities?  What kind of television programming does the claimant watch?  Can she recount the content or stories she watches or reads? 

For how long in minutes and hours and how far and how often does the claimant drive?  Does the claimant drive only during the daytime and only to familiar places?  

How often (each day, week, month) does the claimant accompany her husband to the store?  How long does she spend in the store?  Does she ever go to a store on her own?  Does she carry anything from the store?  Does she lean on a carriage while in the store?

Veglia v. Commissioner of Social Security, Case No. 2:13-cv-00227-FtM-29DNF (D. M.D. Fla., Ft. Myers Div., Feb. 21, 2014).

Tuesday, March 25, 2014

Mood Disorder with Anger, Alcohol and Marijuana Abuse, Cocaine Abuse in Remission, Back Sprains and Strains and Mild Degenerative Disc Changes of the Lumbar Spine.

The claimant appealed on the grounds that the Administrative Law Judge erred by rejecting the opinion of his treating psychologist, Dr. Ford.

The federal magistrate judge’s opinion noted that the ALJ found that the opinions of Dr. Ford were internally inconsistent and inconsistent with treating notes.  The ALJ indicated that the psychologist had concluded that the claimant was compliant with medication and was stable on medication.

With respect to internal inconsistency, the court found that: “Essentially, the ALJ compared two different areas of functioning and found an inconsistency rather than comparing the same area of functioning in both opinions. Based on this alleged inconsistency, the ALJ appears to have rejected Dr. Ford’s opinion as a whole. The Court finds that the decision’s reasoning fails to satisfy the ‘good reasons’ requirement as it is simply inaccurate.”

The court stated: “If Dr. Ford’s opinions are inconsistent with other portions of his treatment notes, the decision fails to offer specifics.”

As to the claimant’s being stable with medication, the court pointed out that the observation was made, not by Dr. Ford, but by another doctor who was treating the claimant for physical problems.
The court concluded that “a treatment note indicating that Kiefer was ‘stable’ does not constitute a ‘good reason’ to reject the opinion of a treating psychologist regarding the claimant’s functional limitations.” 

The district court magistrate judge stated: “the observation that Kiefer was ‘stable’ is of rather limited utility in the disability context. . . . ‘Stable’ is a medical term that simply means a condition is neither better nor worse.”  (Citations omitted.)

The ALJ decision was remanded.

Kiefer v. Commissioner of Social Security, Case No. 5:13-cv-00679 (D. N.D. Ohio, E. Div., Jan. 8, 2014).

Chronic Schizophrenia, Hallucinations, Bipolar Disorder and Poor Judgment.

On appeal, the claimant argued that the Administrative Law Judge’s residual functional capacity assessment was contrary to his treating psychiatrist’s opinion.

Among other errors, the district court found that the ALJ “misunderstood” the treating psychiatrist’s opinion where the doctor had stated that one of the claimant’s symptoms was “retardation.”  In fact the psychiatrist identified not retardation which is determined by an I.Q. test, but “psychomotor agitation or retardation.”

The court went on to define psychomotor retardation as a long established component of depression or bipolar disorder:  “in the depressive phase that is observable as marked speech abnormalities, such as lengthy pauses and lowered volume of speech; characteristic eye movements, such as fixed gaze and poor maintenance of eye contact; gross psychomotor slowing, including movement of the hands, legs, torso, and head, slumped posture, and increased self-touching, especially of the face.” (Citations omitted.)

In remanding the case, the court described the ALJ’s decision as “not consistent with the requirements of law and is not supported by substantial evidence.”


The code of federal regulations, 20 CFR, Appendix 1 to Subpart P of Part 404—Listing of Impairments, for listing 12.04, defines affective disorders as: “Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation.”

“Psychomotor agitation or retardation” is listed as a sign or symptom under section A of the listing.

Badi v. Commissioner of Social Security, Case No. 6:12-cv-1733-Orl-DAB (D. M.D. Fla., Orlando Div., March 6, 2014).

Friday, March 21, 2014

Unspecified Arthropathy, Schizophrenia, Bipolar Disorder, and Cocaine Abuse.

The magistrate judge recommended that the Administrative Law Judge’s decision be affirmed.

Among other issues, on appeal the claimant argued that the ALJ should have given his social worker’s opinion controlling weight (see Mar. 18, 2014, blog entry below regarding acceptable medical sources).  The magistrate judge noted that: “Several courts have concluded that where a licensed social worker or other unacceptable medical source is working as part of a treatment team and an acceptable medical source has ‘signed off’ on the opinions, they should be evaluated as a treating physician opinion, but that does not appear to be the case here.”

In this instance, Social Security responded: “Dr. MacAuley did not sign Mr. Greenfield's opinion and while her name is written on the report in the space for ‘treating psychiatrist,’ it appears to be in the same handwriting as the remainder of the report, which was prepared by Mr. Greenfield.” The magistrate judge agreed that there was no evidence that the social worker’s opinions had been endorsed by the psychiatrist.

The claimant also objected to the ALJ’s conclusion that the claimant was not credible.  The magistrate judge noted:

“While plaintiff contends that he cannot read or write, the ALJ recounted that plaintiff’s allegations regarding his ability to read and write contained numerous inconsistencies. . . . For example, the ALJ found it suspicious that plaintiff did not claim illiteracy in either of the prior disability applications that are part of the record. . . . In fact, as the ALJ noted . . . plaintiff specifically indicated that he could read and write English in the May 2006 adult disability report. . . . The ALJ further noted that plaintiff’s allegation of illiteracy was inconsistent with his school record, which documented that he received a grade of "B-" in reading . . . and that plaintiff was able to obtain his driver’s license in spite of alleged difficulties reading or writing . . . . While there were contrary indications in the record that supported plaintiff’s claim that he could not read or write, the ALJ’s credibility determination is entitled to substantial deference; and here, the ALJ has cited substantial evidence to support his conclusion that plaintiff’s illiteracy claim was not entirely credible.”


While illiteracy, like many other concepts, has legal definitions, many people may mistakenly use the term to describe difficulties with reading and/or writing.

Social Security regulations define illiteracy in 20 CFR 404.1564(b):  “(1) Illiteracy. Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.”

Students can be given social promotions in school and may earn a satisfactory grade for effort rather than mastery of subject matter.  Some states have allowed illiterate people to take oral tests for driving licenses.  Sometimes people obtain driving licenses through illegal means.

Because it is difficult to know what we don’t know especially when legal meanings are involved, it helps to have sounding boards, such as a personal advocate and a disability representative.  In any case, errors made initially on Social Security forms need to be identified and addressed as soon as possible.  

The result of not presenting a consistent functional ability statement can be a denial.

Martin v. Commissioner of Social Security, Case No. 13-10420 (D. E.D. Mich., S. Div., Feb. 17, 2014).

Thursday, March 20, 2014

Schizoaffective Disorder, Chronic Pain, Personality Disorder, Not Otherwise Specified, With Borderline Features.

In this report and recommendation by a US Magistrate Judge, the court concluded that because of the Administrative Law Judge’s errors, the unfavorable hearing decision should be reversed and the claimant should be paid benefits.

The court, quoting Social Security Ruling 96-6p, found that the ALJ had not properly evaluated the conclusions of a Social Security consultative psychologist (Dr. Buxton). The ruling states that an ALJ “must consider and evaluate any assessment of the individual’s [residual functional capacity] by a State agency medical or psychological consultant and by other program physicians or psychologists.” The court emphasized that: “This requirement is mandatory. The ALJ did not do so with regard to Dr. Buxton's opinion.”

The court further stated that the ALJ failed to mention the claimant’s more current records.  The court noted:  “It is clear that the ALJ must consider all the record evidence and cannot ‘pick and choose’ only the evidence that supports his position. [Citation omitted.]”
Dr. Buxton “determined that other than for relatively brief intervals of time, she might well not perform in a reliable and dependable fashion as an employee secondary to the negative impact from her Schizoaffective Disorder and pain complaints on her functional capabilities as well as the possibility of any breakthrough seizures.”

“Dr. Buxton further found that with the accumulation of frustration and stress claimant would encounter in the job setting, she might well have exacerbation in the epileptiform seizures. Additionally, he determined that with the accumulation of frustration and stress, one might also see some exacerbation in her Schizoaffective Disorder, an increase in her pain complaints, and a tendency to act or behave in a fashion that might work to her own demise.”

The court concluded:  “Dr. Buxton's opinion indicates that claimant would be unable to work until she demonstrated ‘significant improvement’ in her overall functional status. At this point, the medical records demonstrate that she has not.”

Foreman v. Commissioner of Social Security, Civil Action No. 12-2833 (D. W.D. Louisiana, Lafayette Div., Jan. 30, 2014.

Tuesday, March 18, 2014

Depression, post-traumatic stress disorder, scoliosis of the spine.

The claimant was 20 years old when she filed her application.  She saw Social Security consultative examiners, a medical doctor and a psychologist, and the Administrative Law Judge ultimately relied on their opinions.

On appeal the claimant argued, among other issues, that the ALJ erred in not fully evaluating the report and opinion of the consultative psychologist, Dr. Watson, that she saw on behalf of the Legal Aid Society (presumably her representative).  Dr. Watson’s “diagnostic impression was major depression, recurrent, severe with psychotic features, post-traumatic stress disorder and personality disorder.”  The claimant also argued that the ALJ erred in not fully evaluating the reports and opinion of her treating social worker.

The court noted that Social Security rules and regulations do not require the ALJ to explain his reasons for rejecting the opinion of a non-treating source.  Social Security also categories treating sources, such as social workers, as “not an acceptable medical source,” and thus not entitled to the same evaluation as a treating doctor.  See 20 CFR 416.913(a); Social Security Ruling 06-03p.

In affirming the denial of her claim, the court noted that according to the medical evidence the claimant said she had left one position because of lack of transportation, not because of impairments, and that she had continued to look for employment.  The court also noted that when the Social Security consultative psychologist asked her why she could not work, “she was unable to state any reason.”


1.  Explaining why you cannot work is an essential part of your disability application.

2.  SSR 06-03p states:

“[The] regulations provide specific criteria for evaluating medical opinions from ‘acceptable medical sources’; however, they do not explicitly address how to consider relevant opinions and other evidence from ‘other sources’ listed in 20 CFR 404.1513(d) and 416.913(d). With the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not ‘acceptable medical sources,’ such as nurse practitioners, physician assistants, and licensed clinical social workers, have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists. Opinions from these medical sources, who are not technically deemed ‘acceptable medical sources’ under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file.”
The regulations do not require adjudicators to treat the opinions of these treating medical professionals in the same manner as those of the “acceptable medical sources.”

Howlett v. Commissioner of Social Security, Civil Action No. 3:13-CV-744-DW (D. W.D. Kentucky, Louisville, Jan. 30, 2014).

Monday, March 17, 2014

Grid Rules

The Administrative Law Judge applied Social Security’s medical-vocational rules, also known as the Grid, to find the claimant disabled as of September 1, 2010.  As of that date, the ALJ considered the claimant to be part of the category of individuals of advanced age, age 55 or older.

The claimant appealed to the district court arguing that she was disabled prior to September 1, 2010.  Among other argument, she asserted that the ALJ erred in relying on the state reviewing physicians, rather than her treating doctors, and the ALJ erred in evaluating her pain and credibility.

By relying exclusively on the Grid rules, the ALJ essentially denied the claimant’s case until she could be considered in the age 55 category.  The district court sustained the decision.

The court noted that:

“The Grid considers the vocational factors of age, education, work experience, and [residual functional capacity], and serves to establish disability by synthesizing these factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a). Under the Grid, age is divided into three categories: younger person (18-49); person closely approaching advanced age (50-54); and person of advanced age (55 and over) 20 C.F.R. §§ 404.1563(c)-(e).”

The court continued:  “The ALJ correctly applied the Grid at Step 5 to find that Plaintiff is a person of limited education, with no transferable skills, who is unable to perform her past relevant work.”


Especially for an older worker, the Grid Rules can mean the difference between being found disabled or not disabled.

Bubeck v. Commissioner of Social Security, Case No. 3:12-cv-333 (D. S.D. Ohio, Western Div., Dayton, Jan. 9, 2014).

Friday, March 14, 2014

Diabetes, Peripheral Neuropathy, Charcot Foot.

The claimant complained of “diabetes, degenerative discs in her back, high blood pressure, bronchial problems, arthritis, and swelling and numbness in her right foot.”  The Administrative Law Judge “found that Plaintiff suffered from diabetes, a back disorder, obesity, and chronic obstructive pulmonary disease . . . .”

In this appeal, the claimant argued that the ALJ’s residual functional capacity assessment did not include all of her limitations and that the vocational expert’s testimony was based on a hypothetical that did not include all her limitations.

The claimant testified at the hearing that she had “severe arthritis in her feet and legs such that they swell up if she stands too long; she had one disc replaced and two more degenerative discs; when she tries to walk a little distance her whole left side stiffens up on her. . . . The pain in her back from the arthritis causes her pain which goes straight down the left side of her body down to her leg and foot. . . . Plaintiff also testified that she had severe peripheral sensory neuropathy, or nerve damage, in her feet, legs, arms, and hands; she was losing feeling in her hands due to the peripheral neuropathy. . . . Plaintiff has also had issues with swelling in her feet, legs, hands, and whole body at times; arthritis in her right hand also caused swelling at times. . . . Plaintiff further testified that her diabetes was not controlled, but went from one extreme to another; she failed to take the medication because she could not always afford it. . . . She would opt not to take her insulin at night, but only take it in the morning; she would not be able to take the dose at night because she did not have enough. . . .”

The court cited medical evidence that:  “Over the following twelve months between fall of 2009 and 2010, Dr. Mason opined that the claimant was suffering from ‘severe peripheral sensory neuropathy,’ Charcot in her right foot, and ‘quiescent Charcot on the left.’”

The court also observed that: “Diabetic Charcot foot arthropathy is one of the most serious foot problems that diabetics face, and it is a result of nerve damage or neuropathy that leads to a loss of sensation in the feet; diabetes also damages blood vessels, which decreases the blood flow to the feet and poor circulation weakens bone, and can cause disintegration of the bones and joints in the foot and ankle; the combination of bone disintegration and trauma can warp and deform the shape of the foot.” (Citations omitted.)

With regard to the issue of noncompliance with medical advice, the court found that, “The ALJ went to great length to describe [the claimant’s] noncompliance, even misstating and mischaracterizing some of the evidence, and failed to discuss [the claimant’s] inability to afford the insulin medication.”
The court ruled that the ALJ erred by failing to recognize the claimant’s “peripheral neuropathy, including specifically her Charcot foot problems, as a severe impairment and include limitations from these impairments, particularly related to sitting and walking” in his residual functional capacity assessment and hypothetical.

Further the court found that “the ALJ failed to adequately discuss, in the context of Plaintiff’s noncompliance, her inability to afford her insulin and other medications, as he is required to do” and the ALJ compounded his error “by significantly mischaracterizing the records of noncompliance or citing records not in the Record at all.”
The case was remanded.

Smith v. Commissioner of Social Security, Case No. 6:13-cv-52-Orl-18DAB (D. M.D. Fla. Orlando Div., Mar. 4, 2014).

Thursday, March 13, 2014

Coronary Artery Disease, COPD, Depression and Anxiety

The Administrative Law Judge found that the claimant exhibited “the signs and symptoms of the following severe combination of impairments: chronic obstructive pulmonary disease [COPD]; hypertension; ischemic cardiomyopathy (due to coronary artery disease) . . . gastroesophageal reflux disease; adult onset type II (non-insulin-dependent) diabetes mellitus; obesity; depression; and anxiety.”

On appeal the claimant, among other issues, asserted that the ALJ erroneously discounted his credibility. 
The claimant testified that because of his cardiac and other problems, he had extreme limitations in physical activity “as he ‘runs out of air’ when engaging in simple activities of daily living.”

The ALJ’s decision pointed out that while the claimant asserted that his 2001 heart attack changed his life “big time,” the claimant continued working at his job for eight years.

The ALJ also noted that the claimant said that “he mowed the grass weekly, went shopping, and attended church weekly. . . .”

Additionally, the ALJ stated that when the claimant received unemployment benefits, he was certifying that he was “ready, willing, and able to work” and had been looking for work.

“[T]he ALJ specified that despite plaintiff's testimony of difficulty breathing with activity, lower extremity pain and numbness, generalized fatigue, and disabling mental impairments . . .  plaintiff did not report any of these to his treating cardiologist . . . .”

The district court sustained the ALJ decision on all the issues including credibility, stating: “The inconsistencies between plaintiff’s hearing testimony and prior statements regarding his activities of daily living provide substantial support for the ALJ’s credibility finding.”


This case shows several credibility problems for the claimant.

The ALJ’s decision pointed to inconsistencies between a Social Security function report in the file and what the claimant was actually doing (continuing to work).

The claimant was also reported to be mowing the grass weekly and shopping and attending church services without further extenuating explanation. 

Also, very damaging, the claimant’s medical records did not include any contemporaneous reports to his cardiologist regarding the disabling symptoms that he testified about.

The claimant had applied for unemployment benefits during his claimed period of disability.

Applying for unemployment benefits is a known “problem” in a disability application that should never be left unexplained.  A person might apply for unemployment benefits seeking a job with only limited hours or the ability to work from home or a job that would otherwise accommodate his disabling impairments.  Although doubtful of finding a job he could do, a person might apply for unemployment benefits because it was required of him by a welfare office.

Comberger v. Commissioner of Social Security, Case No. 1:13-cv-24 (D. S.D. Ohio, Western Div., Feb. 3, 2014).

Wednesday, March 12, 2014

Degenerative Disc Disease of the Cervical Spine, Psoriatic Arthrophathy & a Generalized Anxiety Disorder.

The court found that “the [Administrative Law Judge’s] reasoning fails to provide the necessary specific and legitimate reasons, supported by the record, for rejecting [a treating physician’s] opinion.

A large part of the ALJ’s decision was based on a purported internal inconsistency in the doctor’s opinion.  But the court found that the doctor had made “nothing more than a simple mistake” in filling out a questionnaire.

Citing Ninth Circuit Court of Appeals precedent, the court found that:  “Where an ALJ provides legally insufficient reasons for rejecting medical opinion, that opinion is treated as true.”  Harmen v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In this case, the doctor’s opinion established disability.

The court held that there were no further factual issues to be resolved and remanded the case for an award of benefits.


This decision was based on Ninth Circuit Court of Appeals precedent.  See the article below, just above the copyright line, regarding precedent.

Here the court upheld the treating physician rule.

Fiorucci v. Commissioner of Social Security, No. 6:12-cv-2227-TC (D. Ore. Jan. 29, 2014).

Tuesday, March 11, 2014

Severe Obstructive Sleep Apnea and Transient Ischemic Attacks.

The court noted the claimant’s arguments were based on the conclusions of three of his treating physician:

“Dr. Alokeh consistently found that Plaintiff suffered from sleep apnea, transient ischemic attacks with associated fatigue and weakness . . . .”

“Dr. Altajar [a cardiologist] assessed Plaintiff with severe obstructive sleep apnea and excessive sleepiness and fatigue and would not clear Plaintiff to drive a car or return to work.”

“Dr. Berry diagnosed Plaintiff with severe obstructive sleep apnea, excessive daytime sleepiness, a history of cerebrovascular accident, hypertension, and obesity.”

The Administrative Law Judge found that the claimant’s severe impairments were obesity and sleep apnea.

The court remanded the case finding that the ALJ erred in discounting the opinions of three treating physicians and relying on another without demonstrating how their opinions were or were not supported by their medical records.

The court also found that the ALJ did not properly evaluate the claimant’s past relevant work as a high school teacher.  The court noted that the ALJ failed to articulate how the claimant could continue to work given that he is unable to remain awake throughout the day.

Longenecker v. Commissioner of Social Security, Case No. 2:13-cv-17-FtM-DNF (D. M.D. Fla., Ft. Meyers Div., Feb. 13, 2014).

Thursday, March 6, 2014

Degenerative Disc Disease and COPD

On appeal the only issue the claimant raised was that the Administrative Law Judge had erred in “not finding that plaintiff’s degenerative disc disease at L4-5 and her COPD combined to meet or equal a listed impairment.”  The claimant was not represented at her hearing, but had counsel for the federal court appeal.

In the five-step sequential evaluation of disability, at step 3, Social Security considers whether a claimant “meets or equals” a medical condition set out in the rules.

The claimant’s medical evidence included a December, 2009, MRI which “showed a herniated disc at L4-5 with compromise of the exiting nerve root.”  In an office visit in February, 2010, the doctor reported that the claimant “had a normal gait and was able to toe walk, heel walk, squat and arise, hop and get on and off the examining table with no difficulty. . .  . She had some limitation of the range of motion of her lumbar spine. Straight leg raising was negative in both the sitting and supine positions.”

In its confirmation of the ALJ decision, the court quoted the most relevant listing for the claimant’s back pain, Listing 1.04.  [See, 20 C.F.R. 404, Appendix 1 to Subpart P of Part 404—Listing of Impairments. 1.00 Musculoskeletal System.] The court stated that: “the evidence falls far short of establishing that plaintiff met all of the requirements of Listing 1.04A. There was no evidence of a neuro-anatomic distribution of pain. Listing 1.04A specifically requires evidence of positive straight-leg raising test in both the sitting and supine positions, which is absent here. Further, there is no evidence of motor loss, muscle atrophy, sensory loss or reflex loss.” 

The court did not discuss whether the impairments equaled a listing.  For the ALJ to find that the claimant equaled a listing, a medical expert testifying at the hearing would have had to say as much.  [See 20 C.F.R. 404.1526; Social Security Ruling 96-6p.]


Doctor’s notes will include observations on how a person entered an examination room and whether the person had any difficulty getting on and off an examining table.

The court noted that the claimant submitted additional medical records to the Appeals Council, but it could not use them as a basis for finding that the ALJ (who had not seen the records) had committed reversible error.

Williams v. Commissioner of Social Security, Civil No. 13-cv-492-DRH-CJP (D. S.D. Ill., Jan. 8, 2014).

Wednesday, March 5, 2014

Borderline Intellectual Functioning and a Learning Disorder.

Among other issues considered by the court was the ALJ’s credibility determination.

The claimant argued that the ALJ improperly discounted her credibility because she failed to produce (corroborating) educational and treatment records.  The claimant was not represented at her hearing, but did obtain counsel for her federal court appeal. The reviewing court found that “the ALJ provided several other specific, clear, and convincing reasons for finding that plaintiff’s symptoms and functional limitations were not as severe as she alleged.”

In this case, “the ALJ specifically pointed to plaintiff’s generally good activities of daily living, which were ‘greater than one would expect for a totally disabled individual . . . .’”  (Citation omitted.)  The court noted that, “the ALJ observed that plaintiff’s work after the alleged disability onset date, although not representing disqualifying substantial gainful activity, nonetheless indicated that her daily activities have been greater than alleged.”

Citing medical records, the ALJ reported that “although plaintiff told Dr. Georgis that she did not take any drugs and told Dr. Woodard that she had no substance abuse issues (only having tried marijuana twice at the age of 20), plaintiff testified at the hearing that she had used marijuana and crystal methamphetamine earlier that year.”

The court affirmed the ALJ’s unfavorable decision.


1.  Especially where there are limited medical records, to make a convincing case for disability, claimants have to detail (in Social Security disability application forms and in testimony) their difficulties in activities of daily living and why they were unable to continue working.

2.  The adjudicator, after determining to deny the disability claim, may review medical records looking for statements that contradict statements made at the hearing.

Hernandez v. Commissioner of Social Security, No. 2:12-cv-2605-KJN (D. E.D. Calif., Jan. 10, 2014).

Available at:

Tuesday, March 4, 2014

Osteoarthritis, degenerative disc disease

The Administrative Law Judge found that the claimant’s severe impairments were “osteoarthritis, degenerative disc disease, coronary artery disease, depression, post-traumatic stress disorder (PTSD), borderline intellectual functioning, and obesity . . . .”  The ALJ found, nontheless, that the claimant could continue to work as a cleaner and presser.

On appeal the claimant argued that the ALJ erred by failing to properly weigh the opinions of two of her treating physicians. The court found that one doctor failed to support his opinion with reference to medical evidence, observations, and physical findings, and thus the ALJ did not err by declining to give the opinion more than “little weight.”

However, the court remanded the case because the ALJ’s assessment of the other doctor’s opinions failed to comply with the rules for evaluating treating physician opinions. The court noted that “the ALJ did not consider whether Dr. Houk’s opinions were ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques’ for purposes of the ‘controlling’ weight analysis” (citations omitted).
The claimant pointed out that objective evidence in support of her doctor’s standing and walking limitations included MRI evidence in October, 2009, and a series of x-rays of plaintiff’s knee and back in September, 2010, and May, 2011.  
The court stated: “In rejecting Dr. Houk’s opinion that plaintiff would be unable to perform the amount of walking and standing required for light work activity, the ALJ failed to explain whether the treating physician’s opinions were well-supported . . . . [footnote omitted].”

“The Court cannot accept the Commissioner’s post-hoc rationalization in support of the ALJ’s decision. Where the ALJ has failed to weigh a treating physician’s opinion in accordance with Social Security’s procedural regulations, the Court cannot excuse the failure even though there may be sufficient evidence in the record supporting the ALJ’s decision. . . .”

“In the absence of any explanation by the ALJ for his decision to give Dr. Houk’s opinions little weight the Court is unable to meaningfully review the ALJ’s decision or conclude that the ALJ gave ‘good reasons’ for the weight assigned to Dr. Houk’s opinions[footnote omitted]. . . .”

Zanders v. Commissioner of Social Security, No. 1:13-cv-137 (D. S.D. Ohio, W. Div., Jan. 23, 2014).
Available at:


Courts can and should reverse (or remand) ALJ decisions which are not supported by substantial evidence.  Here, the court found that the ALJ’s failure to give reasons for giving little weight to the doctor’s opinions was not “harmless error.”

Monday, March 3, 2014

Lumbar and cervical dysfunction and depressive disorder.

The Administrative Law Judge found the claimant’s impairments to be: “herniated nucleus pulposus at L4-L5 and L5-S1 status post laminectomy at L4-L5 with recurrent herniation at L4-L5 and nerve root impingement; spinal stenosis in the lumbar spine; cervical dysfunction variously described as minimal bulging, tear and spondylitic changes; coccydynia; and a mental impairment variously described as depressive disorder, adjustment disorder with depressed mood and pain disorder.”

In this case the ALJ gave only “limited weight” to the residual functional capacity limitations that the claimant’s doctor identified.

The claimant’s treating physician had found that the claimant’s physical capacities were that she: “can sit for less than 2 hours and stand for less than 2 hours in an eight-hour workday; she can occasionally lift up to 5 pounds; she can perform simple grasping and fine manipulations with both hands, but she cannot push or pull with arm controls; she cannot use her right or left leg for pushing and pulling of leg controls; Claimant requires a twenty minute rest period every hour during an eight-hour workday; and she will need to lie down for substantial periods during a normal workday.”

On appeal, the court concluded that the ALJ had not met his burden of articulating evidence to support his reason for rejecting or giving limited weight to the doctor’s opinion.  The court also found that one of the reasons cited by the ALJ that the doctor’s opinion was based on the claimant’s subjective complaints was “wholly conclusory.”

The court cited the three MRIs and an EMG study as among the objective results supporting the doctor’s opinion.

The court remanded the case for further proceedings.


Courts will accept the facts as found by the Administrative Law Judge if they are supported by substantial evidence.

The court here cited precedent that good cause to reject a physician’s opinion would exist if: “(1) treating physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.”

Pereira v. Commissioner of Social Security, Case No. 6:12-cv-1831-Orl-GJK (D. M.D. Fla., Orlando Div., Feb. 7, 2014).

Available at:

Saturday, March 1, 2014

Lumbar spine degenerative discogenic disease, lumbar radiculopathy, a left medial meniscus tear, median nerve entrapment in both wrists and major depressive disorders.

On appeal the claimant argued that the Administrative Law Judge’s hypothetical presented to the vocational expert did not accurately reflect all of claimant’s functional limitations.  Specifically, the claimant suggested that the ALJ wrongly concluded that, “unskilled work inherently involves low levels of stress for employees.”

The court stated:  “While a correlation between unskilled and low-stress positions may indeed exist, it does not follow that unskilled work is necessarily low-stress. When a claimant’s mental impairments are at issue, there is a need to examine the individual’s specific vocational abilities in light of the impairment.” 

Citing case law, the court quoted Social Security Ruling 85-15:

“The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.”

The court found that: “The ALJ erred in making an independent assumption that unskilled work is inherently low-stress, rather than incorporating the factors necessary to properly evaluate the impact of a mental impairment on claimant’s vocational abilities into his hypothetical to the [vocational expert]. . . . at a minimum the hypothetical ought to include factors associated with low-stress environments, such as the ability or inability to interact with supervisors and co-workers.”

The court remanded the case.


When a claimant has mental impairments, his abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting must be evaluated.


Méndez v. Commissioner of Social Security, Civil No. 12-1725 (MEL) (D. P.R., Jan. 10, 2014)

Available at: