The Vocational Expert

You are attempting to obtain social security disability benefits.  You were denied on your initial application and on reconsideration.  You now arrive at the hearing; in the hearing room you are introduced to the judge, the judge’s clerk and reporter, the medical expert if one is present and then you are introduced to the Vocation Expert.  Why is that person in the room?  What is the expert’s function?  What information on vocations is the expert allowed?

Seeing that that ALJ has called on a vocational expert means, one good thing, apparently you haven’t already lost!  A vocational expert is not necessary if the Medical Vocational Guidelines apply (‘the grid’).  If the grid applies, it mandates a finding of disabled or not disabled based upon the criteria applicable to the individual applicant (20 C.F.R. Part 404, Subpart P, Appendix 2).[1]

In all other cases, vocational expert testimony would be appropriate.  Since the grid does not apply, the ALJ will need the expert’s assistance on the issue of whether or not a claimant is employable.

Before I continue, it is important to understand that the older the claimant is, the better chance of success under the grid rules or testimony of a vocational expert.  The system is geared to individuals 50 years of age or older (even more favorable if the claimant is over 55 years of age).  The older the claimant the less vocational adjustment he/she will be required from past employment into other work.

The hearing covers five areas of consideration, substantial gainful activity, severe impairment, listings, residual functional capacity, ability to return to former work, and ability to do any full time work in the regional or national economy.

It is in steps four and five that the vocational expert’s testimony is relevant, to-wit, can the individual do any past relevant work, if not, is there work in the national economy that can be performed on a full time basis.  The Vocational Expert’s expertise, experience and testimony will usually assess the claimant’s ability to work based upon past work, performed in the prior 15 years, medical limitations, claimant’s education and age.

Vocational expert’s testimony assists when: (i) there are significant non-strength limitations that exist and make application of the grid inappropriate; (ii) there is a question as to the existence and nature of skills that claimant can be transferable to other work (An important and frequent issue that the vocational expert can address); (iii) a claimant’s limitations because of an impairment preclude performance of a full range of work activity at a given level of exertion.  If a claimant has such limitations, it is up to the vocational expert to determine if, in his/her opinion, claimant can perform some occupation(s) at the specific level of exertion with his/her limitations.

Given the importance of the Vocational testimony to the outcome of a case, how do you judge the vocational expert?

A place to start may be the credentials of the expert.  A problem is that credentials needed by a person presenting as a vocational expert are not specified in any regulation or agency rule.  My experience is that the vocational expert called to testify generally is an individual trained in rehabilitation counseling, such as a qualified rehabilitation consultant, or someone trained in industrial psychology.  Most have had years of experience.

Clients frequently ask about the various jobs that a vocational expert refers, many which the client does not recognize.  The regulations provide sources that provide, what social security will accept, reliable job information.  The regulations specifically cite several sources such as:   the Dictionary of Occupational titles, which is published by the Department of Labor; Census reports published by the Bureau of the Census, Occupational Analysis published by Social Security and various state publications.

It is sometimes fruitful to inquire of the vocational expert as to whether or not he/she has ever placed any individuals in the jobs identified?  Are you still placing people in jobs as part of your day to day work? Have you recently placed anyone into a job, you have now identified, who had impairments similar to claimant?  Although it is not unheard of an ALJ cutting off such questions if the expert’s testimony is based upon approved source material.

An interesting question is can the ALJ take into account provisions of the American’s with Disabilities Act (ADA)in ruling on whether or not the claimant is employable.  Under provisions of the ADA an employer must make reasonable accommodations for an employee’s disability.  Can the ALJ ask the vocational expert whether or not with reasonable accommodations made for the claimant’s disability, is the claimant employable?

Such was the issue in Eback v. Chater, 94 F.3d 410 (8^th Cir. 1996).  The Court’s holding was that it was inappropriate --

“This rationale is faulty for numerous reasons, the most significant of which is that a determination of relevant jobs existing in the national economy in significant numbers must be based on an assumption that the employer would be willing to make accommodations under the ADA. The Associate Commissioner of Social Security issued a statement that the ADA and the disability provisions of the Social Security Act have different purposes and have no direct relationship to each other.

[The inquiry into other available jobs] is based on the functional demands and duties of jobs as ordinarily required by employers throughout the national economy, and not on what may be isolated variations in job demands (regardless of whether such variations are due to compliance with anti-discrimination statutes or other factors). Whether or how an employer might be willing (or required) to alter job duties to suit the limitations of a specific individual would not be relevant because our assessment must be based on broad vocational patterns ... rather than on any individual employer's practices. To support a ... finding that an individual can perform "other work," the evidence ... would have to show that a job, which is within the individual's capacity because of employer modifications, is representative of a significant number of other such jobs in the national economy.” @ 412 (underlining added)

The vocational expert testimony in many cases can result in finding of disability or not disabled.  It is important that the evidence relied upon by the vocational expert, is all the evidence, that any hypothetical question put to the expert is based upon the whole record.  Good luck!

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

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[1] The grid presumes that an individual can perform a full range of work at one of three levels of exertion, sedentary, light, and medium. Once the level of exertion is determined, the grid applies specific criteria—age, education, pervious work experience, skills, no skills, skills that are transferrable and skills that are not to determine if a finding of disabled or not disabled apply.  In general, the use of the grid is limited to impairments that result in only exertional limitations, i.e. if only strength activities are involved.

Attorney's ethics and disclosure of adverse evidence

The issue is simple to state: Is there a legal obligation on the claimant's attorney, in a social security disability case, to disclose adverse information that has come into the attorney's knowledge?

A social security disability hearing is not the typical trial. It is non-adversarial hearing¹, claimants need not be represented by counsel, there is no separate government attorney to advocate against claimant, and the Administrative Law Judge who proceeds over the matter, questions the claimant, is to be impartial and is the adjudicator the facts.

The claimant carries a burden during the adjudication process of proving that s/he is disabled and qualifies for benefits.² This burden on the claimant does not remove the burden placed upon the ALJ to, under the applicable regulations, to ensure that the claimant’s complete medical history is developed for at least the twelve months preceding the month in which the claimant filed his application. 20 C.F.R. §§ 404.1512(d).³

In representing the claimant and meeting the obligations imposed by regulation, there is a question; under what circumstances does the claimant and their representatives have an legal obligation to disclose adverse evidence to SSA? What if adverse evidence, is an adverse medical report from a personal injury or workers compensation action, or old reports which are counter to the majority of other evidence in claimant's file, does it have to be disclosed?

20 C.F.R. § 1320a-8(1)(C) provides a penalty for anyone who makes a statement for use in determining eligibility for disability benefits and:

“omits...or otherwise withholds disclosure of ...a fact which the person knows or should know is material to a determination of (eligibility for)...benefits...if the person knows or should know, that the statement or representation with such omission is false or misleading or that the withholding of such disclosure is misleading.” (italic added)

The foregoing is the current law, it is not very clear in what is required. Clearly there could have been a regulation put into effect that made a crystal clear requirement on disclosure of adverse information.

The present regulation, in my opinion, is clear that claimant and his/her representative provide evidence that support the disability claim. The claimant carries the burden of coming forth with sufficient evidence to support a claim for benefits. What seems unclear is the same burden placed on the claimant and his/her representative to produce evidence adverse to a finding of disability.⁴

The directive in the regulation that directs that the claimant is to produce “everything that shows that you are blind or disabled”, does not seem to endorse production of adverse evidence. Is there somewhere else to look for assistance?

Further reading of the regulation provides and additional directive to the claimant. A claimant must provide “medical and other evidence that can assist social security in determining “whether you are disabled.” That section of the regulation could be read to mean that the claimant produce adverse information.

The attorney representing a claimant must interpret the regulation in relation to the ethical obligations owed to his client. The attorney has a duty to zealously represent his client to the best of his ability. Disclosure of adverse information could be viewed as a violation of the attorney's (state imposed) ethical obligation to the client, unless there is a direct federal mandate for disclosure.⁵ I found none. Congress adopted the Social Security Protection Act of 2004, unfortunately it did not clearly require an attorney to disclose adverse information. The best that can be said is that the attorney cannot withhold a fact that the attorney knows or should know is material to a determination of whether the claimant is entitled to benefit.⁶

Adverse medical examinations in personal injury and workers compensation cases are not obtained for the claimant's benefit, for his treatment, or care, they are obtained by a representative of an insurance company trying to defend a claim made for injuries suffered by the claimant. Many times the expert's opinion favors the payer of the expert's charges and is in no manner an unbiased report. So such reports always rise questions for an attorney in the social security setting.

SOMETHING NEW!!!!
Social Security has proposed rulemaking @ 79 Fed. Reg. 9663 (Feb.20, 2014) which deals with th subject matter of this blog.

Proposed:  20 CFR §§ 404.1512(a) and 419.912(a) You must 'inform' us about or submit all evidence known to you that relates to whether or not your are blind or disabled.

The current rule requires a claimant "to prove to us that you are blind or disabled."

Apparently social security wanted to emphasize that it is not shifting the responsibility to develope the record to the claimant.

So what is proposed for the claimant's responsibility?  Under the above noted proposed sections under (c) for each is stated that: You must inform us about or submit all evidence known to you that relates to whether or not your are blind or disabled.  When you submit evidence from another source, you must submit that evidence in its entirety. 

Under a proposed change to the rules governing representative's responsibility there is a requirement to help to obtain the information.

This will be an interesting change and one wonders how it will work once put into effect.  We have an ALJ who issues a pretrial order directing that all evidence be submitted before the hearing.

Clearly, under the proposed rule that is an invalid/improper order.  It is not claimant's responsibility nor counsel to obtain records, at most there is an obligation to inform about such evidence.  If counsel has obtained adverse medical information, there appears to be no obligation on him/her to submit the evidence only to inform social security of the author of the records.  If social security does not obtain the records, that is a breach of its duty to develop the record.  It is an all other nothing issue.  If parts of the record are helpful and parts not, if the claimant wants that material submitted, all of the records must be submitted.  If the records are not helpful, a disclosure of the medical source is all that is required of claimant.

I could see some benefit in a close case, in which there is only one source that has any adverse evidence to disclose the source and see if the records are obtained prior to the hearing.  If they are nothing is lost, if they are not, the claimant's case benefits.

 

I had come to the decision to disclose adverse information, now if the new regulation becomes law, the decision may be to disclose but not turn over evidence.

Another reason to consider disclosure but not production is the cost to obtain the medical reports. If social security obtains the records, it does so at its cost.  Lastly,  the proposed regulation removes my prior reason I had settled upon to submit adverse evidence, such as, would a later discovery or disclosure during the hearing (as when the ALJ asks at the hearing if all evidence has been submitted) hurt the client's case? Or, if the ALJ discovers that evidence was available and not presented, it will that adversely affect how the judge views the attorney's presentation? These worries are rendered meaningless under the proposed regulation, since the burden to develop the record is clearly upon social security, disclose of the medical provider(s) is all that is requested of the claimant or counsel.

Under the proposed regulation, clearly support is given to my prior opinion that a pre-trial 'discovery order' by an ALJ, is improper. I had come to that opinion based upon portions of the HALLEX, the regulation and case law, arguing:

First, we have the regulation which describes an administrative hearing, 20 C.F.R. 404.900 --

“(b) Nature of the administrative review process. In making a determination or decision in your case, we conduct the administrative review process in an informal, nonadversary manner. In each step of the review process, you may present any information you feel is helpful to your case...”

The HALLEX, (Hearings, Appeals and Litigation Law Manual) is a publication from the Social Security Administration's Office of Disability Adjudication and Review (ODAR). ODAR administers hearings for people seeking reviews of their applications for disability benefits. HALLEX contains policy statements for carrying out the SSA's guiding principles.

Section I-2-5-14 deals with obtaining Medical Evidence from a Treating Source or Other Medical Source. It provides procedures under which the ALJ or social security staff can request such information from claimant or representative. There is no provision for directing a formal order at the claimant his/her representative to provide such evidence.

Section I-2-5-24 deals with claimant Fails or refuses to submit Evidence or undergo a Consultative Examination or Test. You would think that if there was a desire to use a formal order to facility discovery it would be under the situations covered by this section of the HALLEX, but again, there is no directive to use such a procedure.

There are cases, though directly not on point, do give some guidance. Britton v. Astrue, No. 07-1547(2008 7^th Cir.). The dealt with claimant's counsel's demand for information from the vocational expert. The Court in dicta noted:

“We recognize that the lack of pretrial discovery in Social Security hearings can make the task of cross examining a VE quite difficult....But refuse to endorse a system that drags out every social Security hearing to an interminable length.”

20 C.F.R. 405.334 is a new regulation dealing with prehearing statements, although not specifically on point, this regulation deals with the ALJ requesting that prehearing statements be submitted.  The regulation as drafted has no enforcement provision.  This would seem to enforce the lack of enforcement over an order directing disclosure of all evidence.

The proposed regulation clearly puts the burden on social security to develop the record, i.e. collect the evidence.  Such a pre-trial order is contrary to the regulation.

These are difficult issues and I assume will be dealt with on a case by case basis, because every case is different and presents different challenges for the attorney trying to obtain benefits for a client he believes to be disabled.

1Heckler v Campbell, 461 U.S. 458 @461 (1983); 20 CFR 404.900

220 C.F.R. § 404.1512(a)

3 Hilsdorf v. Commissioner of Social Security, 724 F.Supp.2d 330 (E.D. NY. 2010) citing Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). An ALJ must engage in a reasonable effort to obtain the treating source records

420 C.F.R. § 404.1512

5Professional Responsibility and Social Security Representation: The Myth of The State-Bar To Compliance With Federal on Production of Adverse Evidence, Robert E. Rains, Cornell Law Review Vol. 92:363

6See footnote #4

A Short History of Attorney's Fees and Social Security

In a prior blog, I spoke to the history of social security. Here the issue is the history of the attorney fee process as the social security law developed.
As to administrative proceedings, the 1935 Social Security Act made no provision for attorney’s fees. 49 Stat. 620 (1935). It was four years later that Congress amended the Act to permit the Social Security to prescribe maximum fees attorneys could charge for representation of claimants before the agency. Social Security Act Amendments of 1939, 53 Stat. 1360.

"Sec. 206.

The Board may prescribe rules and regulations governing the recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants before the

Board, and may require of such agents or other persons, before being recognized as representatives of claimants that they shall show that they are of good character and in good repute, possessed of the necessary qualifications to enable them to render such claimants valuable service, and otherwise competent to advise and assist such claimants in the presentation of their cases.

An attorney in good standing who is admitted to practice before the highest court of the

State, Territory, District, or insular possession of his residence or before the Supreme Court of the United States or the inferior Federal courts, shall be entitled to represent claimants before the Board upon filing with the Board a certificate of his right to so practice from the presiding judge or clerk of any such court.

The Board may, after due notice and opportunity for hearing, suspend or prohibit from further practice before it any such person, agent, or attorney who refuses to comply with the Board's rules and regulations or who violates any provision of this section for which a penalty is prescribed.

The Board may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim before the Board under this title, and any agreement in violation of such rules and regulations shall be void.

Any person who shall, with intent to defraud, in any manner willfully and knowingly deceive, mislead, or threaten any claimant or prospective claimant or beneficiary under this title by

word, circular, letter or advertisement, or who shall knowingly charge or collect directly or indirectly any fee in excess of the maximum fee, or make any agreement directly or indirectly to charge or collect any fee in excess of the maximum fee, prescribed by the Board shall be

deemed guilty of a misdemeanor and, upon conviction thereof, shall for each offense be punished by a fine not exceeding $500 or by imprisonment not exceeding one year, or both.”

Discussions in Congress concerning the possible adoption of the 1939 amendments, indicated that Congress thought that there would very little need for counsel in agency proceedings. H.R. Rep. No.728, 76th Cong., 1st Session, pp. 44—45 (1939); S. Rep. No. 734, 76th Cong., 1st Session, p.53 (1939).

"While it is not contemplated that the services of an agent or attorney will be necessary in presenting the vast majority of claims, the experience of other agencies would indicate that where such services are performed the fees charged therefor should be subject to regulation by the Board, and it is so provided." H.R. Rep. 728, supra, at 44-45; S. Rep. 734, 76th Cong.,

1st Sess. 53 (1939).  
Although Congress authorized regulation of attorneys practicing before the social security,it  did not lift the bar on assignment of benefits, I,e, it did not authorize the withholding of fees. Section 406 as added to Title II in 1939 simply authorized the Board to regulate the practice of claimants' representatives and provided that "(t)he Board may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim before (it)" (Section 201, 53 Stat. 1372;  42 U.S.C.
(1940 ed.) 406).

Under the 1939 amendments, the Board established a maximum fee of $10, permitting a higher fee only by petition to the agency. 20 CFR § 403.713(d) (1949).
Presently over 80% of claimant's requesting disability benefits from Social Security are represented and attorney's fee can be withheld and assigned to the attorney in a successful case. Fees are now assessed on a contingent basis and the amount of fee paid (by withholding from claimant's total award) is usually 25% of any back due benefits to a maximum of $6,000.00 (it is the lesser amount paid to the attorney). With a small fee paid to social security, the attorney's fees can be withheld and directly paid to the attorney.

Post Disability Benefits!!

You have been found disabled and are currently collecting social security disability benefits (DIB/SSDI). It has been a period of time since the finding of disability. You have been treating with a doctor, physical therapist, etc., and over time your condition has improved and you would like to try to return to a job. Although you have this desire, you are terrified of starting a job, then losing benefits and later finding out you cannot continue to work.

If you have a strong desire to attempt to return to work, successful or not, there is important information you need to understand about social security disability and benefits available to assist you in a return to work.

Social security’s rules allow a trial work period. When you first start working, you get a period of time to try to ease back into the job market. During the trial period, you get full SSDI benefits no matter how much you earn. In 2013, each month that you earn $750 or more counts as a trial work month. After nine trial work months, consecutive or not), your trial work period ends.

Are you left adrift after the nine months? Once your trial work period is up, you can get another 36 months where you can work and still get SSDI benefits. These 36 months are called the extended period of eligibility, or EPE. During the EPE, you get SSDI benefits each month unless your earnings for that month are "substantial", i.e. if you earn over $1,040.00 your earnings are considered “substantial.” (2013 values)

After the extended period of eligibility, you lose your SSDI benefits for any month in which your earnings exceed the 'substantial' amount. If that happens, you get "grace period" benefits for three more months, but then your SSDI benefits stop, and social security will no longer consider you disabled.

At this point in time, your social security SSDI benefits have stopped, and you are no longer considered disabled by social security. There are still benefits available. You have a five year period of time to make sure that you can keep working. If during these five years, you can not work because of your disability, not that you lost your job for some other reason, you can ask social security to reinstate your SSDI benefits.

Aside to just work benefits, another important benefit is the continuation of Medicare coverage. We all know how expensive medical care has become, having Medicare coverage can remove a lot of anxiety.

Most persons with disabilities who work will continue to receive at least 93 consecutive months of Hospital Insurance (Part A); Supplemental Medical Insurance (Part B), if enrolled; and Prescription Drug coverage (Part D), if enrolled, after the 9-month Trial Work Period. You do not pay a premium for Part A.

A Short History of Social Security

Curious about the origins of social security retirement? I was. Here is a little of what I have learned.

Social security is not an American invention. It appears that for the most part, types of social insurance first originated in Europe in the late 19th century.

In the late 19^th and going into the 20th century, the first elements of an organized system of social insurances, state sponsored or authored were introduced in many countries. In 1883 Germany introduced one of the first welfare systems for the working class. Great Britain introduced a social insurance system in 1911, Belgium in 1900, the Netherlands in 1901, Austria in 1906, France in 1910, Italy and Spain in 1919, and Hungary in 1928.

The United States did not have an organized welfare system until the Great Depression. By the time the United States adopted social insurance applicable to a large segment of the working population in the form of Federal old-age benefits (known today as Social Security) in 1935, there may have been as many as 20 nations around the world already with such a program in place. The United States looked at the foreign experiences in drafting our social insurance program.

Thus, the United States embarked in 1935 on the road to providing its working population with old-age pensions, following in many respects the social insurance models adopted by (Social Security Administration 2008). Universal coverage of all wage earners and self-employed persons was not achieved at an early date in these countries; the gradual expansion of programs to cover all categories of workers (such as white-collar workers, clerics, and local government officials) was only completed near the end of the 20^th century. At their inception, most European old-age insurance programs covered only blue-collar workers, reflecting their governments' desire for more stability in the labor markets and to fend off the political threat of national socialism and communism. Even today, France, Italy, and Greece have multiple public old-age pension programs, posing a significant obstacle to advancing coherent and unified national pension policies.

Apparently even in the 30’s there was political concern over giving out benefits versus earning the benefits. President Roosevelt and members of the Committee on Economic Security were in agreement that the Social Security should not be compared to government relief payments to the poor. President Roosevelt took strides when describing social security to make a distinction between social insurance and social assistance; we are putting people on 'the dole'. In pushing for social security his description of the program focused on the American tradition of individual responsibility and self-reliance. Whenever he could, he emphasized that the program was not merely giving out benefits; there was an element of earned benefits in the program. Along with the preference for "earned rights," the social security program would be based on worker/employer contributions rather than general revenue financing.

Under the 1935 law Social Security only paid retirement benefits to the primary worker. A 1939 change in the law added survivors benefits and benefits for the retiree's spouse and children. In 1956 disability benefits were added.

In its formative years between 1956 and 1960, therefore, SSDI paid benefits only to workers who were fifty years of age or older.

So who got the first payment? Ernest Ackerman got a payment for 17 cents in January 1937. This was a one-time, lump-sum pay-out which was the only form of benefits paid during the start-up period January 1937 through December 1939.

Authority Administrative Law Judge

If and when you get to a hearing before an administrative law judge (ALJ), you may wonder what to expect. You have seen TV trials. You have watched crime shows.  You may very well have developed an idea of what might be in your future.

When your disability claim reaches the hearing level, your case will be heard by one person, an administrative law judge. There will be no jury. There will be no opposing counsel.  There most likely will be a vocational expert and a medical expert present. The hearing will be conducted by an administrative law judge who will ask the majority of questions. What the administrative law judge misses, your attorney will most likely inquire.  On the conclusion of the hearing, the Judge will take your case under advisement and make a decision.

This process, how Social Security Administration determines disability claims, has been the subject of study, debate, and critical comment.

Many conservatives are critical of this structure, alleging that it is too generous, and too easy to obtain benefits.  Claimant’s attorneys complain about the process. Congress has investigated.  All of this has time and time again caused changes to be proposed. Some of the proposed changes include; not using administrative law judges to decide these cases rather the decisions be made not after "hearing," but after "examination" by a panel of experts; that a government attorney represent the interest of social security so that the hearing process become fully adversary; and of course, making changes to the substantive standard, or at least make the receipt of benefits more burdensome by the development of regulations or precedent decisions.

Notwithstanding the challenges to the existing procedure, there has not been a critical change in the process. So for the foreseeable future, the ALJ will be the person deciding the issue of whether or not you are disabled at the hearing level.

An administrative law judge, ALJs, are Article I judges under the U.S. Constitution.  Article I vest all legislative power in Congress.  Article I section 8 grants to Congress the power to “constitute Tribunals inferior to the Supreme Court”.  Under the U.S. Constitution, judicial power and authority is placed in Article III – “The judicial power of the United States, shall be vested in one supreme Court…”.  Since ALJ are not Article III judges they do not exercise full judicial power, they are limited in the scope of their work and authority.

 So although the ALJ is sort of a minor judge, the ALJ is “the judge” in your case at the hearing level.  At this level of review, you could not have a Article III judge, you are restricted to an ALJ. After a hearing an ALJ will review of your file, or review a senior attorney’s breakdown of your case.  There will be a review of questions ask of you at the hearing, and the questions asked or posed to the vocational expert and in many cases a medical expert.

In that respect what happens when your treating physician provides evidence that your impairment equals what the regulatory Listing of Impairments requires for a finding of disability?

You would think that the opinion given by your treating physician, the medical person must familiar with your case, would win the day and a finding of disability would issue. This is not always the case.

A reading of 20 CFR 404.1527(d) (1)-(3) lists issues reserved to the ALJ, i.e. the judge decides the issue even if another ‘expert’ has rendered an opinion on the same issue. One of such issues include: Opinions that you are disabled. The determination or decision about whether you meet the statutory definition of disability. Therefore a statement by a medical source that you are “disabled” or “unable to work” does not mean that the judge will be required to adopt that as a finding. The opinion of on whether or not your impairment equals or meets the Listing of Impairments is a decision reserved for the Judge to decide. The opinion if you have the residual functional capacity to return to competitive employment; and in reality the nature and severity of your impairment, reserved.

How does a Judge not accept the treating physician's opinion on your impairment?

Even if your doctor's opinion is well supported in the medical information, the Judge may not adopted it if he/she can articulate facts in the case that are inconsistent with the doctor's opinion. The Judge may find facts from your testimony that conflict with restrictions the doctor has placed on your activities. The Judge may find, conflicting statements made by you to other doctor's in the course of treatment that to the Judge appear to weaken the treating physician's opinion. In any case, such findings may very will be the basis for the Judge not giving controlling weight to your treating physician. (Consider Sparks v. Barnhart, 434 F. Supp. 2d 1128 (ND Ala. 2006))

Suppose that the claimant claims a physical impairment. In his file, a treating physician states that his impairment may include a conversion disorder, but he was not sure. He recommends that claimant be examined to determine if there is a mental component to his disability. The lack of medical insurance prevents the suggested examinations.

Based upon the doctor’s statement claimant's file does not provide adequate evidence for the judge to decide the case.

One difference from most litigation, social security disability adjudications are not adversarial in nature.  Social security administration has a responsibility to collect evidence: Before SSA makes a determination that a claimant is not disabled, it must develop a claimant’s complete medical history for at least 12 months preceding the month in which the application was filed. 20 CFR § 404.1512(a) & (d), 416.912(a).

The ALJ can send the claimant for a consulting examination or if a treating physician or psychologist provides inadequate information, the ALJ can contact the physician to determine whether additional information is readily available. 20 CFR 1512(e)(1-2).

In this arena the ALJ in some manner on your side, in some manner on the side of social security, and ultimately the judge and the jury.

Early Retirement on Social Security and Social Security Disability

A claimant comes into the office.  She is working and is approaching her 62^nd birthday.  The claimant looks healthy, while in fact she is suffering stage four breast cancer.  She wants to retire and try to get social security disability.  What is she to do?

Her appearance - and question, brings up the subject of the relationship between social security disability (SSDI, DIB) and social security retirement.  In the majority of cases, you cannot collect both  i.e. social security disability payments are payable to a worker who is unable to be competitively employed in the national economy because of a disability.  Retirement benefits are for workers (healthy or not) who reach a certain age (depending on their birthday[1]) and decide to apply for retirement benefits. 

There is an exception to the general rule that you cannot collect both benefits.  That exception applies to a worker who takes early retirement i.e. before age 66 years (using the above date of birth) and then applies for and qualifies for disability benefits.

Social security disability benefits pay the disabled worker a benefit that approximates what she would have received at full retirement.  SSDI could be considered as a bridge benefit, benefiting a claimant too young to retire, but disabled.  It would be a worker who has worked and earned benefits from the social security system.  Even though too young for retirement if sufficiently disabled she can get disability benefits that will bridge the period of time from full impairment to full retirement age.

There is some risk to the claimant.  The risk is that by applying for early retirement, she is subject to a permanent reduction in retirement benefits, if she is not found disabled.  In this example, since the claimant retired at age 62, she will experience approximately a 25% reduction in retirement benefits.  This will be a permanent reduction, i.e. at age 66 her full retirement benefit will be 25% less than if she had retired at age 66 years.

If social security finds that the claimant is disabled before full retirement age, here at age 62, social security will make up the difference between the early retirement payments and disability payments for the period of time of the overlap of benefits - up to age 66 years.

If as in this case, early retirement and disability overlap for the full period, disability benefits continue to full retirement with full retirement payments.  If the claimant took early retirement on May 1, XXXX and is found disabled May 1, XXXX the five month waiting period means the first disability payments begin in November XXXX.  When the claimant reaches age 66, she will receive 5 months of reduction in her retirement payments.

 This is a complex area of the law.  It involves retirement issues, medical issues, and financial issues.  If you are in a situation that puts this in question, you need to speak to a financial expert and an experienced attorney working in the area of the law.

Nothing in this blog is intended to establish or create an attorney client relationship.  The blog is conversational and not intended to be taken as legal advice. If any issue in this blog is important to your situation, you need to speak with an attorney and/or a financial specialist.

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[1] In the case of a worker born in 1949, the minimum age to retire is 62 years of age, full retirement age is 66 etc.