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.

Wednesday, May 28, 2014

Chronic Fatigue Syndrome & Other Social Security Rulings

Social Security Rulings Related to Specific Impairments

Effective April 3, 2014, Social Security issued a new ruling on Chronic Fatigue Syndrome, Social Security Ruling 14-1p.  A previous ruling on Chronic Fatigue Syndrome (Social Security Ruling 99-2p) was rescinded.

Social Security Rulings (SSR) can be found at or, by an Internet search for a specific ruling.

Previously, Social Security had issued rulings on evaluating other specific impairments:

SSR 82-57:  loss of speech
SSR 87-6:    epilepsy
SSR 90-5c:  review of case related to blindness
SSR 93-2p:  HIV (human immunodeficiency virus)
SSR 02-1p:  obesity
SSR 02-2p:  interstitial cystitis
SSR 03-1p:  postpolio sequelae
SSR 03-2p:  reflex sympathetic dystrophy/complex regional pain syndrome
SSR 03-3p:  blindness (initial claims for individuals age 65 or older)
SSR 06-1p:  tremolite asbestos-related impairments
SSR 07-1p:  visual field loss
SSR 12-2p:  fibromyalgia
SSR 14-1p:  chronic fatigue syndrome

Monday, May 19, 2014

No matter the legal definitions, the jobs aren't coming back.

The Administrative Law Judge denied the claimant’s application, acknowledging that he might not be able to perform his past relevant work, but ruling that he could still do other work, that was physically less demanding.

The claimant appealed to the federal district court which affirmed that agency decision, and he appealed again to the federal circuit court of appeals.

In reaching his conclusion, the ALJ relied on a vocational expert who testified that work existed that an individual with the claimant’s residual functional capacity could do, namely, as “an assembler (1,500 jobs in the State of California and 15,000 jobs in the nation) or as an almond blancher (1,000 jobs in the State of California and 10,000 jobs in the nation).”

The claimant questioned the interpretation of the statutory terms “region where such the individual lives” and “significant number” as relating to the number of jobs identified.  The relevant statutory language, as quoted by the court, is:

“[A]n 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

[42 U.S.C. ] § 1382c(a)(3)(B) (emphasis added). That same section defines ‘in the national economy’:

“For purposes of the preceding sentence (with respect to any individual), ‘work which exists in the national economy’ means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

Id. (emphasis added). The accompanying regulations reiterate that ‘work exists in the national economy when it exists in significant numbers either in the region where [the individual lives] or in several other regions of the country.’ 20 C.F.R. § 416.966(a).”

The court of appeals noted that the term “region,” has not been formally defined by the Commissioner of Social Security.

The claimant specifically asked the reviewing court to find that Bakersfield-Delano, one of California’s twenty-six metropolitan statistical areas to be a “region” as opposed to considering the entire state of California to be a region.  The 9th Circuit Court of Appeals rejected the claimant’s argument that Social Security should use the census bureau’s definition of a metropolitan statistical area as a “region” for purposes of the Social Security Act.  The court found that with respect to “local area” also, that: “the regulations flowing from the statute are clear that ‘region’ is not limited by statute or by regulations to the local or immediate area of the claimant.”

The court declined to rule that California was too large to qualify as a region “on this record,” stating that the claimant had asked it “to re-write the Social Security Act and the Commissioner’s implementing regulations.”

The court further ruled that “we have never set out a bright-line rule for what constitutes a ‘significant number’ of jobs. Nevertheless, we have upheld a number of jobs less than 2,500 in a handful of cases, and in those cases, the regions were smaller than the State of California.”

Although the court stated, “policy decisions such as those implicated by [the claimant’s] arguments are best addressed to Congress and the Social Security Administration, not to us,” it added, “We can conceive of a factual record which might demonstrate that using an entire state as large as California as a ‘region’ — or for that matter Alaska or Montana — would be problematic.”

With respect to the number of jobs available nationally, the court observed that:  “Under our current case law, the ALJ’s finding that 25,000 national jobs is sufficient presents a close call.” (Citations omitted.)  However, the court did not disturb the ALJ’s decision.


In this case, the Circuit Court of Appeals for the Ninth Circuit suggests that it might reconsider its holdings in a case where fewer numbers of jobs might be considered not “significant.”

While a more precise definition of “region” and “significant numbers” would benefit applicants and adjudicators now, even the Social Security Administration admits that its methods of occupational analysis are out-of-date. 

See Attorney Traver’s comments on Social Security’s most recent proposal:

Gutierrez v. Commissioner of Social Security, 740 F. 3d 519 (9th Cir. 2014).

Tuesday, May 13, 2014

Getting Approved for Social Security Disability is Getting Harder

On his blog today, Charles Hall posted a chart showing fiscal year 2013 allowance rates for disability applicants at the initial, reconsideration, Administrative Law Judge hearing, Appeals Council and federal court levels.  See

The federal fiscal year 2013, began on October 1, 2012, and ended on September 30, 2013.

As Hall pointed out, the allowance rate at the ALJ hearing level in 2013 was only 48%, a decline from (fiscal years) 2012, which showed 52% approved, and 2011, which showed 58% approved.

The chart can be found at page 168 of the Social Security Administration’s report, “Administration Justification of Estimates for Appropriations Committees Fiscal Year 2015,” dated March, 2014.

Wednesday, May 7, 2014

Shoulder Injury

The Administrative Law Judge found that the claimant’s severe impairments included: obesity; Type 2 diabetes mellitus; lumbar and cervical degenerative disc disease, with radiculopathy and mild canal encroachment; a history of rotator cuff tears, status post surgical intervention; a history of right ankle ligament tears, status post surgical intervention; hypertension; arthritis of the left AC joint, with a history of tendinitis; a history of drug addiction; a major depressive disorder; and a panic disorder, with agoraphobia.

The claimant’s appeal raised the issue that the ALJ failed to recognize the claimant’s right shoulder impingement and right upper extremity radiculopathy.

The court observed that:  “as the parties here seem to acknowledge, the ALJ appears to have misread the evidence pertaining to [the claimant’s] right shoulder as that concerning her left shoulder. . . . . As such, although the form of the ALJ’s analysis might be acceptable under the analysis set forth above, the content is not, since the reason given is not a “good” reason because it is grounded on a factual mistake about the evidence of record. . . .”

The court’s decision focused on the claimant’s argument that the ALJ’s failed to apply the treating physician rule as required in the Sixth Circuit.  [See the sidebar article on precedents below.]

The district court opinion outlined what the ALJ must do if he discounts the treating source’s opinion.  The court emphasized that two distinct analyses, applying two separate standards, are called for.

“The opinion must receive controlling weight if (1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent with other substantial evidence in the administrative record.  These factors are expressly set out in 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). Only if the ALJ decides not to give the treating source’s opinion controlling weight will the analysis proceed to what weight the opinion should receive based on the factors set forth in 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), (3)-(6) and §§ 416.927(c)(2)(i)-(ii), (3)-(6).  The treating source’s non-controlling status notwithstanding, ‘there remains a presumption, albeit a rebuttable one, that the treating physician is entitled to great deference’ [footnotes omitted].”

In remanding the case, the district court reasoned: “The failure of an ALJ to follow the procedural rules for assigning weight to the opinions of treating sources and the giving of good reason for the weight assigned denotes a lack of substantial evidence . . . .”

Albelo v. Commissioner of Social Security, Case No. 1:12 CV 2590 (D. N.D. Ohio, E. Div., March 17, 2014).