"THE LAW WORKS FOR PEOPLE"

SUPPLEMENTAL SECURITY INCOME

AND

SOCIAL SECURITY DISABILITY

Presented by:The Connecticut Bar Association &Connecticut's Legal Services ProgramsApril 2004

INTRODUCTION

The Connecticut Bar Association and Connecticut's four legal services programs (ConnecticutLegal Services, Greater Hartford Legal Assistance, New Haven Legal Assistance Association,Statewide Legal Services) welcome you to this training program for attorneys volunteering toparticipate in the Law Works for People. The Law Works campaign provides you with theopportunity to join with legal services programs in providing legal representation to low-income people (people with incomes less than 125% of the official federal poverty level -$23,563 annually for a family of four) in Connecticut in 2004. There is a great need for legalservices and yet, the programs have extremely limited resources. Through the Law Worksfor People, members of the private bar help meet some of this unmet need. You will becontacted by a pro bono coordinator shortly after this training if you have not already receiveda pro bono referral.

These materials were created by Joanne Lewis, John P. Spilka and Donna Tresselt ofConnecticut Legal Services. Revised 4/04 by John P. Spilka.

CONTENTS

I. INTRODUCTION: THE DIFFERENCE BETWEEN SOCIAL SECURITY ANDSSI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. SOCIAL SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. Individuals To Whom Benefits Can Be Paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. Retired Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. Disabled Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Survivors and Dependents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Insured Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2C. Benefit Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Primary Insurance Amount (PIA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Dependents' benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23. Reductions and offset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24. Waiting period and retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. SUPPLEMENTAL SECURITY INCOME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3A. Individuals To Whom Benefits Can Be Paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Aged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32. Blind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33. Disabled adults and children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Benefit Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31. Individual and Couple rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32. Standard reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. Financial Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41. Calculation of income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42. Deeming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43. Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

D. Presumptive Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

IV. APPLICATION AND APPEALS PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A. When and Where to Apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B. Levels of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1. Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52. Administrative Law Judge Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53. Appeals Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54. United States District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C. Reopening and Res Judicata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61. Reopening rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62. Administrative res judicata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

V. DISABILITY CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7A. Definition of Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. Standard definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. SSI children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7B. General Rules for Analyzing and Proving a Disability Case . . . . . . . . . . . . . . . . 7

1. Sequential evaluation: 20 C.F.R. § 404.1520, 416.920 . . . . . . . . . . . . . . . 72. Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83. Medical Vocational Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94. Objective evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95. Combination of impairments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96. Analysis of medical opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Proving a Case at the Hearing Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101. Screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102. Suggested steps for preparing the case . . . . . . . . . . . . . . . . . . . . . . . . . . . 103. Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

a. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12b. Vocational experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13c. Medical experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

D. Cessation of Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131. Closed period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132. Medical improvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143. Substantial gainful activity (SGA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

VI. POST ENTITLEMENT ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14A. Representative Payees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14B. Overpayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142. Recoupment limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

a. Statutory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15b. Cross program recovery prohibited . . . . . . . . . . . . . . . . . . . . . . . . 15

C. Work Incentives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161. Social Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162. SSI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

D. Eligibility for Other Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171. Medicare. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172. Medicaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173. State Supplement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174. Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

E. Emergency Advance Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDICES

A. SUBSTANCE ABUSE AND DISABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. HANDLING A PAIN CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201. PAIN CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

a. Second Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20b. Selected Pain Cases From Other Circuits . . . . . . . . . . . . . . . . . . . . . . . . . 22

c. Practical Considerations In Pain Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

20 CFR § 404.1529 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2920 CFR § 404.929 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

C. THE VOCATIONAL EXPERT AND VOCATIONAL CONSIDERATIONS . . . . . . 371. Examples of Nonexertional Impairments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372. Grid Inapplicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383. Qualifications of Vocational Expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384. Hypothetical Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385. Vocational Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396. Vocational Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417. Sedentary Work/Light Work/Medium Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418. Past Relevant Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429. Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

10. Education/Literacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 11. Transferability of Skills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 12. Jobs in Significant Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 13. Stress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 14. Sheltered Workshops/Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 15. Dictionary of Occupational Titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

D. MEDICAL VOCATIONAL GUIDELINES (THE GRID) . . . . . . . . . . . . . . . . . . . . . . 50

E. DEALING WITH VOCATIONAL EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

F. THE CREDIBILITY FACTOR IN DISABILITY CASES . . . . . . . . . . . . . . . . . . . . . . 69

G. EVALUATING MEDICAL EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

H. TREATING PHYSICIAN'S OPINION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

I. FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83DISABILITY UNIT INTAKE SHEET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

ADDENDUM TO INTAKE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97ALCOHOLISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98PAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100EVIDENCE CHECKLIST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101PHYSICAL CAPACITIES EVALUATION . . . . . . . . . . . . . . . . . . . . . . . . . 104MEDICAL SOURCE STATEMENT OF ABILITY TO DO WORK-RELATEDACTIVITIES (PHYSICAL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

MENTAL RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT . . . . 109MEDICAL SOURCE STATEMENT OF ABILITY TO DO WORK-RELATEDACTIVITIES (MENTAL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

J. DEFINITION OF DISABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

K. RESOURCE MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

L. SOCIAL SECURITY RULINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

SSR 83-10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120SSR 83-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128SSR 85-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133SSR 96-2p . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141SSR 96-5p . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146SSR 96-7p . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152SSR 96-8p . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161SSR 96-9p . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

M. OVERVIEW OF SOCIAL SECURITY AND SSI DISABILITY CASE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

N. STANDARDS OF CONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

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SOCIAL SECURITY AND SUPPLEMENTAL SECURITY INCOME BENEFITS

I. INTRODUCTION: THE DIFFERENCE BETWEEN SOCIAL SECURITY AND SSI

The primary difference between Social Security and Supplemental Security Income (SSI) is thateligibility for the former depends on credits for work performed while eligibility for the latterdepends on financial need. Social Security is an insurance program in which insured status is basedon employment earnings. The Supplemental Security Income program was established in 1974 forthe purpose of providing income to individuals who meet four basic requirements:

1) Age 65, blind or disabled; 2) U.S. citizen or a “qualified” legal resident alien;3) within income limits; and,4) within asset limits.

A person may be eligible to receive benefits from both programs if his/her Social Securitybenefits are low and he/she meets the other SSI eligibility requirements. Social Security is alsoreferred to as Title II of the Social Security Act, because that is where the statute is located (42U.S.C. § 401 et seq.). Supplemental Security Income (SSI) is found at Title XVI of the SocialSecurity Act, 42 U.S.C. § 1381 et seq., and is sometimes referred to as Title XVI. The regulationsfor Title II are found in 20 C.F.R. Part 404 and for SSI are found in 20 C.F.R. Part 416.

II. SOCIAL SECURITY

A. Individuals To Whom Benefits Can Be Paid

1. Retired Workers

A fully insured worker is entitled to full retirement benefits at age 65, and can receivereduced benefits at age 62. The amount of the benefit depends on the retiree's age at the time ofapplication and the earnings on which Social Security taxes were paid.

2. Disabled Workers

A fully insured worker who is found to be disabled is entitled to benefits in an amount relatedto former earnings. The monthly benefit is the same amount that would be received upon retirementat age 65. See Appendix for the definition of disability.

3. Survivors and Dependents

Dependents, of people who are collecting retirement or disability benefits or of wage earnerswho died fully insured, are entitled to benefits in an amount related to the insured individual'searnings. See 20 C.F.R. § 404.330 et seq.

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B. Insured StatusInsured status depends upon quarters of coverage. In 2004 a worker is credited with a quarter

of coverage for every $900.00 earned in a calendar year. The amount of earnings required for aquarter of coverage changes annually.

1. An individual is considered fully insured if credited with 40 quarters.

2. In order to receive disability insurance benefits, the worker must be credited with 20 outof the 40 quarters preceding the onset of the disabling condition. Workers who become disabledbefore age 31 need fewer quarters. See 20 C.F.R. § 404.130 et seq.

C. Benefit Amounts

1. Primary Insurance Amount (PIA):

The monthly benefit rate paid to the insured wage earner.

2. Dependents' benefits:

A percentage of the insured wage earner's PIA. There is a maximum amount whichcan be collected by a family.

3. Reductions and offset:

Benefits may be reduced if the insured receives worker's compensation or receivedSSI while a disability insurance application was pending.

4. Waiting period and retroactivity:

An individual must be disabled for five (5) months before he/she can collect SocialSecurity disability insurance benefits. However, benefits can be paid retroactively up to one yearprior to the date of application. See 20 C.F.R. § 404.315(a)(4)

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III. SUPPLEMENTAL SECURITY INCOME

A. Individuals To Whom Benefits Can Be Paid

1. Aged

Applicants must be at least 65 years of age and must provide written evidence of dateof birth.

2. Blind

SSA will consider an applicant blind under the law if medical documentation showsthe claimant is statutorily blind, which means:

a) central visual acuity of 20/200 or less in the better eye with the use of a correcting lens,or

b) tunnel vision of 20% or less

3. Disabled adults and children

An adult applicant must meet the definition of disability as defined by law. Seedefinition of disability below (Section V.A.1.) or in the Appendix. Children under 18 yearsold will be considered disabled if they are suffering from a medically determinableimpairment (or combination of impairments) which results in “marked and severe”functional limitations.

B. Benefit Amounts

1. Individual and couple rates

Individual and couple Federal Benefit Rates (FBR) change annually. In 2004 theyare as follows: $564.00 per month for an individual and $846.00 per month for a couple.

2. Standard reductions

In-kind Income or Living in the Household of Another In-kind income (support andmaintenance), means any food, clothing or shelter that is given to the recipient or that therecipient receives because someone else pays for it. In-kind income is presumed to be onethird (1/3) of the benefit rate unless the individual can prove that it is less. Benefits arereduced by 1/3 when an eligible individual or couple lives throughout a calendar month inthe household of another. See 20 C.F.R. § 416.1130 et seq.

However, there are two ways to avoid this treatment. The assistance can beconsidered a loan if the parties had agreed that the SSI claimant would repay when SSI was

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granted. If the individual is paying a flat fee for room and board, it should not be consideredin-kind income even if the amount paid is not a pro rata share of household expenses.

C. Financial Eligibility

Determination of financial eligibility begins with a list of income and resources (assets).

1. Calculation of income

In order to be financially eligible, countable income cannot exceed the federal benefitrate. Not all income is counted. The rules for calculating countable income are located at20 C.F.R. § 416.1100 et seq.

2. Deeming

Deeming of income means that another person's income is considered to be available to therecipient. It does not matter whether that income is actually available. There are fourcategories of individuals whose incomes may be deemed to a recipient: 1) ineligible spouse,2) ineligible parent, 3) sponsor of an alien or 4) an essential person. See 20C.F.R. § 416.1160 et seq. It should be noted there are many types of income and not all arecountable. There are exclusions.

3. Resources

Resources are defined as cash or other liquid assets or any real or personal property that anindividual or spouse owns and can convert to cash to be used for his/her support andmaintenance. Again, not all resources are countable; there are exclusions. See 20 C.F.R.§ 416.1201 et seq. The resource limit is $2000.00 for an individual and $3,000.00 for aneligible couple.

D. Presumptive Eligibility

If a claimant meets the special eligibility requirements, it is possible to receive benefitpayments for a period of six months while the claim is being processed. To be found presumptivelyblind the claimant must allege total blindness and the District Office representative must observe nosign of useful vision. To be found presumptively disabled the claimant must submit evidence thatshows there is a "high degree of probability" that he or she will ultimately be found disabled.Presumptive disability may be useful in AIDS cases. See 20 C.F.R. § 416.931 et seq. Presumptiveeligibility can only be granted while the initial application is pending. This creates some difficultywith cases such as AIDS, in which the claimant's health may deteriorate rapidly. SSR 78-31 clearlystates that a person has the right to reapply and receive presumptive disability benefits even whileappealing a denial as long as there has been a change in the disability.

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IV. APPLICATION AND APPEALS PROCESS

A. When and Where to Apply

An application is an absolute condition precedent to the receipt of benefits. It should be filedas soon as possible. SSI benefits cannot be paid for periods before the application is filed. SocialSecurity benefits can generally be paid for a year before the filing. The application should be filedat the nearest SSA office. If the applicant is unable to go to the local office, an application can betaken over the phone or one can be mailed to the applicant's home. Generally, there is no time limitwithin which an application must be filed. However, there are specific instances where there areabsolute time limits for filing for certain dependent benefits. It should be noted that the SSA is notrequired to process a disability application within any particular period of time.

B. Levels of Appeal

There are currently four stages in the SSA administrative appeals process all of which mustbe requested within sixty days from the date of the last notice of denial. After receipt of an initialdetermination denying the claim, the appeals process is as follows:

1. Reconsideration

This is the first step in the appeals process. This request is made in writing andsubmitted to the Social Security office. Evidence can be submitted at this time to support theclaimant's disability claim. Reconsideration is entirely a paper review. The SSA will mailthe claimant a written statement of its decision.

2. Administrative Law Judge Hearing

This is the second step in the appeals process. It is requested in the same manner asreconsideration. The SSA form used for the ALJ hearing request is HA-501-U5. Thehearing is held at the Office of Hearings and Appeals (OHA) in front of an ALJ. The twoOHA offices in Connecticut are located in Hartford and New Haven. The hearing is recordedand testimony is taken under oath. The claimant can be represented or can choose torepresent him/herself. The claimant can testify, present witnesses, cross-examine expertwitnesses and request the ALJ to subpoena witnesses and/or documents. The ALJ will thenwrite and issue a decision and the claimant and his/her representative will receive a copy bymail.

3. Appeals Council

This is the last step in the administrative process. If the hearing decision isunfavorable, the claimant can request that the SSA Appeals Council (AC) review the hearingrecord. The AC may on its own motion review and reverse a favorable decision by the ALJbut this rarely happens. If the AC either refuses to review the case or decides against the

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claimant, the claimant can then appeal to U.S. District Court.

4. United States District Court

The court will review the record and will issue a decision either affirming orreversing the SSA decision or remanding to the Administration for further proceedings andpossibly a rehearing before an ALJ. The decision of the District Court, if adverse, is alsosubject to review under the regular federal appellate court procedure.

C. Reopening and Res Judicata

1. Reopening rules

The Social Security Administration, pursuant to its regulations (20 C.F.R. §§ 404.987et seq., 416.1487 et seq.), authorizes a claimant to reopen an unfavorable determinationwhich has not been appealed within the stated time. A determination, revised determination,decision or revised decision may be reopened within 12 months of the date of the notice ofthe initial determination for any reason. Within four years of the date of the notice of theinitial determination, the Social Security disability case may be reopened if "good cause" isfound. (The time limit is only two years in SSI cases).

Good cause includes, inter alia, furnishing new and material evidence ordemonstrating that the evidence which was considered in making the determination ordecision clearly shows on its face that an error was made. The individual's age, educationand medical impairments must be considered when determining whether there is good causefor reopening. Social Security Ruling (SSR) 91-5p specifically discusses the affect of mentalimpairments on a claimant's ability to understand and comply with the appeals process. Theregulations set forth situations where the determination may be reopened at "any time."

2. Administrative Res Judicata

The U. S. Supreme Court has noted that when an administrative agency is acting ina judicial capacity and resolves disputed issues of fact properly before it which the partieshave had an adequate opportunity to litigate, the courts have not hesitated to apply thedoctrine of res judicata to prevent repeated adjudication of the same issues. The SecondCircuit has stated res judicata only applies in situations where administrative proceedingshave been adjudicative in nature. Thus, action by an administrative agency to grant or denya benefit is not an adjudicative action unless the agency has made its decision usingprocedures substantially similar to those employed by the courts. See Delameter v.Schweiker, 721 F. 2d 50, 53 (2nd Cir. 1983). (See also collateral estoppel, 20 C.F.R. §§404.950 (f), 416.1450 (f)).

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V. DISABILITY CASES

A. Definition of Disability

1. Standard definition (adults)

The standard definition of disability applies to adult applicants for SSI, insured wageearners and disabled adult children. As of 1991 it also applies to disabled widows,widowers, and surviving divorced spouses between the ages 50 and 59. In these cases,disability is defined as the inability to perform substantial gainful activity due to a medicallydeterminable impairment or combination of impairments which is expected to end in deathor to last for a continuous period of not less than twelve consecutive months. See 42 U.S.C.§§ 416(i), 423(d), 1382c.

Age, education, and work experience are considered as well as medical impairments.Therefore, an older person with little education and unskilled work experience might befound disabled based upon a medical condition which would not be disabling to a youngeror more skilled person. (See Sequential Evaluation, infra)

2. SSI (children)

Disabled children are eligible for SSI benefits if they suffer from impairments whichwould result in marked and severe functional limitations. 42 U.S.C. § 1382c(a)(3)(A).Because most children would not be expected to work, there are separate regulations forevaluating children's cases. 20 C.F.R. § 416.924 et seq.

In 1990 the United States Supreme Court decided that SSA had been using the wrongstandard to evaluate children's disability claims. See Sullivan v. Zebley, 110 S. Ct. 885(1990). In 1991 SSA published the regulations cited above, and began reevaluating theclaims of thousands of children who had been denied benefits after January 1980. InFebruary 1997, these regulations were revised in accordance with statutory changes set forthin the "Personal Responsibility And Work Opportunity Reconciliation Act of 1996". OnSeptember 11, 2000, SSA issued revised final regulations that modify, to some extent, themanner in which children’s disability claims are evaluated. These regulations took effect onJanuary 2, 2001.

B. General Rules for Analyzing and Proving a Disability Claim (adults)

1. Sequential evaluation: 20 C.F.R. §§ 404.1520, 416.920

Social Security regulations require that cases be analyzed pursuant to a sequencewhich combines administrative convenience and some of the law concerning analysis ofdisability. The specific steps are as follows:

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a. Step One: Is the claimant working? If so, and the work is considered substantialgainful activity (see, infra), the claim is denied. If the claimant is not working or thework is not considered substantial gainful activity, the analysis proceeds to the nextstep.

b. Step Two: Does the claimant have a severe impairment? This is a minimalthreshold test. The claimant must have a medical problem which limits his/herability to perform physical activities such as sitting, walking, standing, lifting, etc.,or mental activities such as concentrating, paying attention, understanding, dealingwith people, using judgment etc. If there is no impairment (or combination ofimpairments) which is severe, the claim is denied. If a severe impairment orcombination is found, the analysis proceeds to the next step.

c. Step Three: Does the medical impairment or combination of impairments meetor equal the criteria of an impairment listed in Social Security's published Listing ofImpairments? (20 C.F.R. Part 404, Subpart P, Appendix 1) If so, the claim isgranted. If not, the analysis proceeds to the next step.

d. Step Four: Given the claimant's residual functional capacity, can he/she returnto his/her past relevant work? Residual functional capacity (RFC) refers to theclaimant's ability to function despite his/her medical conditions. In other words, howlong can the claimant sit, stand, or walk?; how much can he/she lift?; how impairedis his/her ability to comprehend, concentrate, or to produce an acceptable quantity ofwork?; The claimant's RFC is then compared to the physical and mentalrequirements of work performed within the last 15 years. If the claimant can stillperform past relevant work, the claim is denied. If not, the analysis moves to thefinal step. (See Melville v. Apfel, 198 F.3d 45 (2nd Cir. 1999) for a good discussionof past relevant work.)

e. Step Five: Given the claimant's age, education and work experience, as well ashis/her RFC, is there any other work which he/she can perform? Generally, olderworkers are considered less adaptable for retraining. Those with little education, lackof ability to speak English, and no skills acquired in previous work, are also lesslikely to be considered able to work. (See Burden of Proof and Medical VocationalGuidelines, infra).

2. Burden of proof

The initial burden of proof is on the claimant. Nevertheless, Social Security has theobligation to assist the claimant by requesting medical information and arranging necessaryexaminations. ALJs have a duty to fully develop the record before making a decision. Oncea claimant establishes that his/her condition prevents his/her return to past work, the burdenshifts to the Commissioner to show that there is other work which the claimant can do. Thislongstanding rule came from the case law, but the Commissioner has incorporated it into step

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five of the sequential evaluation. The Commissioner can sustain this burden through thetestimony of a vocational expert or by reference to the Medical Vocational Guidelines.

3. Medical Vocational Guidelines

In many cases, the Commissioner can sustain the burden of proof by using theMedical Vocational Guidelines (also known as the grid) located in Appendix 2 of 20 C.F.R.Part 404, Subpart P. These grids are based purely on limitations which arise from exertionalrestrictions such as the ability to do only light or sedentary work as those terms are definedin the regulations. They are helpful for older people with no real skills or job histories.When representing younger claimants, one must generally establish that the grids don't apply,either because the claimant is not capable of performing sedentary work or because ofnonexertional impairments. Nonexertional impairments include such conditions as mentalillness, sensory disorders, environmental disorders and pain which decrease an individual'scapacity for work without necessarily affecting his or her ability to lift, stand, sit, walk, etc.

4. Objective evidence

This is a sensitive subject and a frequent reason for denials. According to statute andcase law, the claimant must establish the existence of a medically determinable impairment.Objective evidence is not required. See e.g. Cutler v. Weinberger, 516 F. 2d 1282 (2nd Cir.1975); Gallagher v. Schweiker, 697 F. 2d 82 (2nd Cir. 1983). As a practical matter, themore objective evidence submitted into evidence, the better. SSRs 96-3p and 96-7pemphasize the importance of objective evidence. (See SSR 99-2p re Chronic FatigueSyndrome).

5. Combination of impairments

Social Security must look at the combined impact of all impairments which havelasted or are expected to last for twelve consecutive months. Several impairments which arenot that severe individually may, in combination, establish disability. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(F), 20 C.F.R. §§ 404.1523, 416.923.

6. Analysis of medical opinions

In August, 1991, SSA published regulations concerning the evaluation of medicalopinions. 20 C.F.R. §§ 404.1527, 416.927. These rules are analyzed in more detail in theAppendix in this manual. They state that the weight to be given medical opinions dependson factors such as the treatment relationship, supportability, consistency with the record asa whole, and area of specialization. 20 C.F.R. §§ 404.1527(d)(1-5), 416.927(d)(1-5).Pursuant to these regulations, the opinion of a treating source (which includes physicianspsychiatrists, osteopaths, licensed or certified psychologists, licensed optometrists andlicensed podiatrists but not chiropractors) is entitled to be given more weight than othermedical evidence. If the treating source's opinion of the nature and severity of the impairment

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is "well supported by medically acceptable clinical and laboratory diagnostic techniques andis not inconsistent with the other substantial evidence" it is entitled to "controlling" weight20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); SS R96-2p.

C. Proving a Case at the Hearing Level

The following procedures were developed for use by Connecticut Legal Services advocateswho handle disability cases.

1. Screening

Legal services advocates generally determine if the case is for Social Securitydisability insurance benefits, SSI, or both (concurrent). Social Security and concurrent caseswill generally be referred to private attorneys. Often prospective clients will not know if theyapplied for Social Security or SSI. You can find out by checking the notices they receivedor by contacting the Social Security Administration. Concurrent cases in which the person'sinsured status expired before he/she applied for benefits will often be treated as SSI cases.

2. Suggested steps for preparing the case

a. Client interview:

The interview is generally done after the client is denied at the reconsiderationlevel. Clients who request help at an earlier stage should be advised about theprocess and told to call back if reconsideration is denied. The intake form printed inthe Appendix covers most of the matters that should be discussed. This outline ofquestions serves a double purpose because it contains most of the information(education, employment history, medical impairments, activities of daily living)necessary to prepare for the client’s testimony at the hearing.

b. Review/copy the file at SSA or OHA

(1) The importance of doing this as soon as possible cannot be overemphasized. Areview of the file will not only give you the evidence which SSA has used to maketheir earlier decision, but will also give you an idea of the strengths and weaknessesof the client's case. Internal SSA documents reveal much more about their rationalefor denying benefits than anything that was sent to the client. The advocate can domuch better case planning and request more specific information from doctors afterreviewing the information in the SSA file.

(2) If a hearing has not yet been requested, the file should be at the local SSA office.If a hearing has already been requested, the file should be located at the Office ofHearings and Appeals in Hartford or New Haven (occasionally files are shipped outof state to be "worked up" but these files can be sent to the local SSA office to becopied).

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c. Legal research

See Appendices for legal information and resource materials.

d. Medical research

The more you can understand about the client's medical condition, the better.You can ask more specific questions and get better responses from doctors, as wellas relate the client's symptoms and limitations to specific points in the medicalrecord. See Appendix for resource materials.

e. Request factual information

(1) Medical information is available from doctors, hospitals, psychotherapists,physical therapists, clinics, etc. Copies of test results and office notes are importantas is the treating physician's opinion concerning the nature and extent of impairment( diagnosis, prognosis, functional limitations, and ability to work). When requestingmedical reports, it is best to mention the client's inability to pay and to request thewaiver of any customary fees in order to avoid future problems. Providers arerequired to furnish copies of records without charge if the records are requested forthe purpose of supporting a claim under the Social Security Act. Such records areto be provided within thirty days of the request. Connecticut General Statutes §20-7c.

(2) Other potential sources of information are vocational counselors or rehabilitationprograms, former employers, social services and welfare agencies, mental health casemanagers as well as lay witnesses such as relatives or friends. ALJs may be reluctantto hear from lay witnesses; it is best to use lay witnesses who can add to the client'stestimony as well as corroborate it.

(3) Follow up on requests for information. Unfortunately, most medical sourcesneed reminders.

(4) Most ALJs prefer that medical evidence be forwarded well in advance of thehearing, if possible.

f. Hearing preparation

Unquestionably, thorough hearing preparation is the key to successfuladvocacy. The advocate should know and understand the exhibits in the record,especially those that are relied upon to support the claim. This assumes that theexhibits have been copied and reviewed prior to the hearing. The advocate shouldalso know the statutes, regulations, Social Security Rulings and, in someinstances case law, which are relevant to the case. A well defined legal strategy

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should be in place. Witnesses should be well briefed in what to expect. Thisbriefing should include: an explanation of the procedure to be followed on the dayof the hearing, a description of the environment in which the hearing will be held,an explanation of the roles played by the other parties present at the hearing(vocational expert, medical expert, hearing assistant, interpreter, etc.) and a reviewof the general line of questioning which the ALJ or the advocate might pursue.

Efforts should be made to obtain all pertinent evidence prior to thehearing. Extensions of time to submit evidence after the hearing, while oftengranted, are within the discretion of the ALJ. Forms generally sent by the ALJ tothe advocate or the client concerning recent medical treatment, current medicationand employment history, should be completed and submitted at the time of thehearing. The Office of Hearings and Appeals is required to provide 20 daysnotice of the hearing. Postponements can be difficult to obtain from ALJs unlessthere are good reasons to grant the postponement. (See 20 C.F.R. §§ 404.936,416.1436).

3. Hearings

a. General

Hearings are semi-formal; more formal than welfare fair hearings and lessformal than state or federal court. They are presided over by the ALJ. Witnessesare sworn; testimony is recorded. While the formal rules of evidence don't apply,some ALJs object to excessive leading of witnesses. Interpreters are providedwhen the record clearly shows that the claimant does not speak or understandEnglish. If the hearing notice does not state that an interpreter will be present, it iswise to call and verify that one will be available for the hearing.

ALJs generally make some kind of opening statement, ask if your clientunderstands the purpose of the hearing, and ask if the documents marked asexhibits should be admitted. (Generally, objections to proposed exhibits are onlyuseful for making comments on the exhibits; they are virtually never sustained.) Some ALJs control the entire hearing, asking the majority of questions beforeallowing the advocate to ask any. Others ask a few perfunctory questions and turnthe hearing over to the advocate immediately. Some ALJs interrupt the advocate'squestions in order to ask their own. While there are no general rules, it is notworth objecting to anything the ALJ does except to create or clarify the record forappeal.

Opening statements are useful if there is a specific issue to which theadvocate wishes to direct the ALJ, for example, the claimant's condition meets aspecific listing, or the work he/she was performing was not substantial gainfulactivity. It is not necessary to use an opening statement to review the entiresequential evaluation. Some ALJs request opening statements from counsel

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including counsel’s legal theory. Please note, the New Haven OHA office requestsa pre-hearing memorandum. Closing statements are generally not necessary butcan be used to clarify the claimant’s legal theory. Again it is not necessary toreview the entire case. Complex legal arguments can be submitted in a writtenmemorandum. ALJ's are usually willing to grant time for such submissions.

As in all hearings there are two goals: to persuade the ALJ to find theclaimant disabled and to establish a record for appeal. The first is obviously thebest for the client, but some ALJs refuse to be persuaded unless it's an open andshut case. On the other hand, some will clearly indicate when they are persuaded. In such cases, closing statements and a memorandum of law are not necessary.

b. Vocational experts

Vocational experts (VE) may be called as expert witnesses by the ALJ,especially when the client has nonexertional impairments and does not fit neatlyinto the medical vocational guidelines (the grid). They are frequentlypsychologists, and should be experts in the counseling and job placement ofpeople with disabilities. Vocational experts generally testify regarding the jobs, ifany, that an individual with the client's medical and vocational limitations canperform. They generally testify in response to hypothetical questions posed by theALJ and the advocate. (See Appendix)

c. Medical experts

Medical experts are doctors who may be called to testify at the hearing. Their role is to interpret and explain the medical evidence. They are frequentlyused when the ALJ wants an expert opinion concerning whether or not theclaimant meets or equals the requirements of a listed impairment. They can alsogive an opinion regarding a claimant’s RFC. Because the medical expert has neverexamined the claimant, his/her testimony should only be based on the evidence.

D. Cessation of Benefits

Disability benefits can be terminated if the recipient has returned to work or if he/she isno longer disabled.

1. Closed period

Even if the claimant's condition is no longer disabling, it is possible to be awardeda closed period of disability in which the onset and cessation of the disability areestablished at the same time. This is most likely to occur in Social Security cases, inwhich benefits can be paid for up to one year before the application was filed, and incases which drag on so long that the claimant’s medical condition has significantlyimproved before benefits are finally awarded.

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2. Medical improvement

Social Security cannot terminate benefits based on medical grounds unless there isevidence of medical improvement. The actual rules are technical and complicated. Theyshould be thoroughly reviewed. See 20 C.F.R. §§ 404.1594, 416.994 et seq. Therecipient has the option of retaining benefits during the appeal, but only if an appeal witha request for continuation of benefits is filed within 10 days at each stage of the process. 20 C.F.R. §§ 404.1597a, 416.996.

3. Substantial gainful activity (SGA)

In order to be grounds for termination of benefits where a claimant has attemptedto work, the work performed must be substantial gainful activity. Generally, work is notconsidered to be SGA if the recipient earns an average of less than $810.00 per month in2004 ($800.00 in 2003) after impairment-related work expenses are deducted. Otherconsiderations which may show that work is not SGA are lack of productivity(make-work), inadequacy of performance, or minimal amounts of time spent working. See 20 C.F.R. §§ 404.1571 et seq., 416.971 et seq. Illegal activity may be consideredSGA. See 20 C.F.R. §§ 404.1571, 416.971.

VI. POST ENTITLEMENT ISSUES

A. Representative Payees

Recipients who are considered incompetent to manage their own funds must haverepresentative payees appointed. All minors must have representative payees. While therepresentative payee is supposed to spend the money for the person's benefit, there hastraditionally been little accountability. In recent years, SSA has required more accountability,especially with regard to the use of benefits received by a minor.

Social Security selects the representative payee. The regulations contain preferences,beginning with spouses and other relatives. In practice, SSA frequently requires the recipient tofind a payee, and suspends payment when one can't be found.

B. Overpayments

Overpayments occur when more than the correct amount of payment has been made. This usually occurs in one of two ways: a claimant is no longer financially eligible(work-related), or Social Security determines he/she is no longer disabled (medicalimprovement). SSA should send notice of the alleged overpayment, explain what caused thealleged overpayment, and inform the beneficiary of the right to appeal the overpayment.

1. Waiver

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If a claimant is not successful in appealing the overpayment, he/she can file a"Request for Waiver" at the local Social Security office. This form is quite lengthy andmost clients will need some help in completing it. It is important to show that thebeneficiary is "without fault" in causing the overpayment, and he/she needs substantiallyall income to meet daily living expenses, leaving him/her no extra money to pay back anoverpayment. Beneficiaries have the right to appeal a denial of waiver to an ALJ.

Waiver of an overpayment should be granted if the individual can show that: (a)he/she is without fault in causing the overpayment and (b) adjustment or recovery wouldeither: (1) defeat the purpose of the Act (not enough money to pay it back) or, (2) beagainst equity and good conscience or, if involving an SSI overpayment, (3) impedeefficient administration of the program because of the small amount involved.

2. Recoupment limitations

a. Statutory

SSI overpayments may generally be recouped by withholding ten percentof the recipients monthly check. The individual has the opportunity to requestthat such adjustment or recovery be made at a higher or lower rate than thatproposed. 42 U.S.C. § 1383(b); 20 C.F.R. § 416.571.

The Social Security Administration generally proposes to withhold anindividual's entire monthly Social Security check unless the recipient contactsthem and negotiates an amount to be withheld. 42 U.S.C. § 404(b); 20 C.F.R.§ 404.502.

It should be noted that if it is determined that the overpayment occurredbecause of fraud, willful misrepresentation, or concealment of materialinformation committed by the individual or his or her spouse in either program,the regulations concerning limitation of recoupment will not apply.

b. Cross program recovery

Absent a specific request from the person from whom recovery is sought,SSI benefits cannot be adjusted to repay an overpayment of Social Securitybenefits. 20 C.F.R. § 416.570. However, there are situations in which an SSIoverpayment can be recouped from Social Security disability benefits. Section 210of Public Law 108-203 signed on March 2, 2004 expands SSA’s cross-programrecovery authority to allow to recover from Title II and Title XVI overpayments inany of those programs up to 100% of lump-sum underpayments.

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C. Work Incentives

1. Social Security

a. Trial Work Period

Disability recipients have a trial work period (TWP) of nine months in any60 month period. The nine months need not be consecutive and any month inwhich the recipient earns more than $580 counts as a trial work month, even if theexperience was an unsuccessful attempt to work. During the TWP, work activityis not counted, regardless of earnings.

b. Substantial Gainful Activity (SGA)

See, supra. Recipients can earn up to $810 per month, after deductions forimpairment-related work expenses, without affecting their Social Securitybenefits. The earnings rules for recipients of benefits due to blindness are similarto those which apply to recipients of retirement benefits rather than disabilityrecipients.

c. Extended Period of Eligibility (EPE)

A recipient who returns to work and performs substantial gainful activitywill stop receiving benefits three months after the end of the trial work period. The EPE only applies if there is no medical improvement sufficient to terminatebenefits for medical reasons. For a period of 36 months from the end of the trialwork period, the recipient's benefits will be reactivated (without the need for anew application) in any month in which he/she does not perform SGA. Since thisis generally computed in terms of dollars earned, it can be translated as follows: Ifthe person earns $810, no benefits are payable; if he/she earns less than $810,benefits are payable for that month. SSA should perform a medical review duringthe EPE even if benefits are not being paid. Please note: The 36 month EPEdates from the end of the trial work period, not from the time when the personbegins to perform SGA.

2. SSI

a. 1619a

SSI has completely different rules concerning people who return to workbut whose medical conditions have not improved. Instead of the trial work periodand SGA rules, disabled SSI recipients can continue to collect SSI disabilitybenefits as long as they remain financially eligible.

b. 1619b

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Even after the recipient becomes ineligible for cash SSI assistance,Medicaid will continue indefinitely as long as the former recipient remainsmedically disabled and cannot afford comparable medical coverage.

c. Plan for Achieving Self Support (PASS)

An SSI recipient who has a plan for achieving self support is allowed toshelter money to achieve an approved goal such as education or special equipmentwhich will enhance his/her ability to leave and remain off the SSI program. Theplan must be specifically approved by SSA and be finite in duration.

D. Eligibility for Other Benefits

1. Medicare:

Social Security Disability recipients are eligible for Medicare two years after thedate they were found disabled. SSI recipients are not eligible for Medicare. 42 U.S.C. §426(b)

There are several programs under which the State of Connecticut will pay theMedicare premiums for low income people.

2. Medicaid:

Both Social Security and SSI disability recipients are considered to be disabled forpurposes of Medicaid eligibility. In a limited number of cases, they are automaticallyeligible for benefits. In most cases, the state Department of Social Service's income andresource rules apply to determine financial eligibility.

3. State Supplement:

The State of Connecticut supplements the income of disability recipients incertain situations.

4. Other:

Receipt of Social Security or SSI generally establishes that a person is disabled orhandicapped as required by other programs such as handicapped housing, tax circuitbreakers, ConnPACE, etc.

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E. Emergency Advance Payments

The local Social Security offices are authorized to issue emergency advance payments atthe time of initial application for qualified individuals (e.g., presumptively disabled) who needassistance before the first payment could arrive. Emergency advance payments are limited to thelesser of one months benefits, or the amount necessary to deal with the emergency (such as athreatened eviction, utility shut-off, etc.) See 20 C.F.R. § 416.520.

APPENDICES

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A. SUBSTANCE ABUSE AND DISABILITY

Prior to February 13, 1995, a claimant could be awarded disability benefits based uponsevere alcoholism or drug addiction. Benefits could be awarded where the individual had beendiagnosed as an alcoholic or drug addict, had lost their ability to control their use of alcohol ordrugs and could not perform work on a sustained basis in light of their substance abuse. Generally, the substance abuse was only one of multiple impairments the individual wassuffering from.

Effective February 13, 1995, Congress enacted legislation which restricted SocialSecurity and SSI disability benefits to three years where it was determined that alcoholism ordrug addiction was a "contributing factor material" to the favorable disability determination. Additional restrictions including the appointment of representative payees and the requirement tobe participating in treatment to address the substance abuse were part of the legislation.

Effective March 29, 1996, Congress enacted new legislation which prohibits anypayments of disability benefits if alcoholism or drug addiction would be a "contributing factormaterial" to the determination that the individual is disabled. Thus, cases involving substanceabuse are now more difficult to prove disability.

It is noteworthy that claimants with a history of alcoholism or drug addiction often have adual diagnosis, i.e., they may be self-medicating (using alcohol or drugs) to treat other seriousimpairments such as depression, post traumatic stress disorder, anxiety, pain from a herniateddisc or other medical impairment, etc. The challenge in these cases is to obtain documentationfrom treating sources who are willing to given an opinion (with supportive reasons) as to whetherthe claimant is significantly functionally impaired apart from their substance abuse. It is mosthelpful to obtain a medical opinion covering a period in which the claimant was not abusing anysubstances for at least 30 days and preferably a longer period.

Cases of Interest:

Bruggemann v. Barnhart, 348 F.3d 689 (8th Cir. 2003)

Doughty v. Apfel, 245 F.3d 1274 (11th Cir. 2001)

Clark v. Apfel, 98 F.Supp.2d 1182 (D.Ore. 2000)

Pratt v. Apfel, 2000 WL 1466099 (W.D. Wash.)

Mittlestedt v. Apfel, 204 F. 3d 847 (8th Cir. 2000)

Westerfield v. Apfel, 75 F.Supp.2d 970 (S.D.Iowa 1999)

Bacca v. Apfel, 1999 WL 587023 (N.D.Cal.)

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B. HANDLING A PAIN CASE

Pain - An unpleasant sensation associated with actual or potential tissue damage, andmediated by specific nerve fibers to the brain where its conscious appreciation may be modifiedby various factors. Stedmans Medical Dictionary (25th ed. 1990)

1. PAIN CASES

a. Second Circuit

Ber v. Celebrezze, 332 F.2d, 293, 299 (2nd Cir. 1964)

Even pain unaccompanied by any objectively observable symptoms which isnevertheless real to the sufferer and so intense as to be disabling will support a claim fordisability benefits.

Marcus v. Califano, 615 F.2d 23, 27 (2nd Cir. 1979)

It has been established that subjective pain may serve as the basis for establishingdisability, even if such pain is unaccompanied by positive clinical findings or other objective medical evidence.

If the ALJ mistakenly believed that the absence of objective, clinical findings of amedical impairment more severe than osteoporosis precluded her from awarding disabilitybenefits based on the other evidence (testimony of claimant, treating physician's opinion) ofappellant's disabling pain, then her decision was based on an erroneous legal standard.

McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701,704(2nd Cir. 1980)

While a claimant must show that the physical or mental impairment by reason ofwhich he claims to be disabled results from anatomical, physiological, or psychologicalabnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostictechniques, 42 U.S.C. Section 423(d)(3), this does not mean that medical opinion mustnecessarily be supported by "objective" clinical or laboratory findings.

The ALJ has the discretion to evaluate the credibility of a claimant and to arrive atan independent judgment, in light of medical findings and other evidence, regarding the trueextent of the pain alleged by the claimant.

Hankerson v. Harris, 636 F.2d 893,895 (2nd Cir. 1980)

This circuit has repeatedly held that a claimant's testimony concerning his painand suffering is not only probative on the issue of disability, but may serve as the basis forestablishing disability, even when such pain is unaccompanied by positive clinical findings or

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other objective medical evidence.

Aubeuf v. Schweiker, 649 F.2d 107, 112 (2nd Cir. 1981)

The ALJ erred by not giving sufficient weight to the claimant's treating physicians'acknowledgement that he was suffering from a medically determinable impairment which causedhim disabling pain. The court noted that there did not exist "substantial evidence" to contradictthe opinion of the treating physician and furthermore the ALJ did not find the claimant'stestimony incredible. In concluding that substantial evidence did not exist to reject the opinionof the treating physicians, the court rejected the ALJ's use of a "sit and squirm index" to evaluatethe intensity of claimant's pain at the hearing and also rejected the ALJ's assessment of claimant'sdaily activities as inconsistent with a painful back injury.

Gallagher v. Scweiker, 697 F.2d 82, 84 (2nd Cir. 1983)

Once an impairment has been diagnosed, pain caused by the impairment may befound to be disabling, even though the impairment ordinarily does not cause severe, disablingpain. The pain need not be corroborated by objective medical findings, but some impairmentmust be medically ascertained. See,(Marcus, osteoporosis), (Aubeuf, spondylitis),(Hankerson,heart disease), (McLaughlin, discogenic disease),(Ber, arthritis of cervical spine).

Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 643 (2nd Cir.1983)

The testimony of the claimant regarding pain was corroborated to some extent bythe doctors who examined him, none of whom indicated any doubts about his credibility. Although the ALJ was not required to credit Carroll's testimony, he would normally be expectedto note his rejection of it in whole or in part. Yet he failed to indicate any such disbelief. Hisobservation that the claimant sat through the hearing without apparent pain, being that of a layperson, was entitled to but limited weight.

Dumas v. Schweiker, 712 F.2d 1545, 1552 (2nd Cir. 1983)

Disability requires more than mere inability to work without pain. To bedisabling, pain must be so severe, by itself or in conjunction with other impairments, as topreclude any substantial gainful employment. The severity of pain is a subjective measure -difficult to prove, yet equally difficult to disprove.

The court here was critical of the claimant's unwillingness to help himself, i.e.,diet to lose weight. His obesity apparently aggravated his symptoms.

Rivera v. Schweiker, 717 F.2d 719, 724 (2nd Cir. 1983)

Although it is permissible for an ALJ to evaluate the credibility of an individual'sallegations of pain, this independent judgment should be arrived at in light of all the evidence

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regarding the extent of the pain.

The ALJ had placed too much emphasis upon his personal observations at thehearing. Citing Gallagher the court said, "Pain itself may be so great as to merit a conclusion ofdisability where a medically ascertained impairment is found, even if the pain is not corroboratedby objective medical findings."

Nelson v. Bowen, 882 F.2d 45, 49 (2nd Cir. 1989)

When a disabled person gamely chooses to endure pain in order to pursueimportant goals, it would be a shame to hold this endurance against him in determining benefitsunless his conduct truly showed that he is capable of working.

b. Selected Pain Cases From Other Circuits

Avery v. Secretary of Health and Human Services, 797 F.2d 19 (1st Cir. 1986)

So long as statements of a claimant or his doctor are not inconsistent with theobjective findings, they could, if found credible by the adjudicator, permit a finding of disabilitywhere the medical findings alone would not.

DaRosa v. Secretary of Health and Human Services, 803 F.2d 24 (1st Cir. 1986).

ALJ may find testimony regarding pain not credible, however, his finding must besupported by substantial evidence and the ALJ must make specific findings as to the relevantevidence he considered in determining to disbelieve the claimant.

Green v. Schweiker, 749 F.2d 1066 (3rd Cir. 1984)

All that the statute requires is that there must be medical signs and findings,established by medically acceptable techniques, which could reasonably be expected to producethe pain or other alleged symptom... Thus, while there must be objective medical evidence ofsome condition that could reasonably produce pain, there need not be objective evidence of thepain itself.

Ferguson v. Schweiker, 765 F.2d 31 (3rd Cir. 1985)

The Third Circuit pain standard requires (1) that subjective complaints of pain beseriously considered, even where not fully confirmed by objective medical evidence; (2) thatsubjective pain may support a claim for disability benefits and may be disabling; (3) that whensuch complaints are supported by medical evidence, they should be given great weight; and (4)where a claimant's testimony as to pain is reasonably supported by medical evidence, the ALJmay not discount claimant's pain without contrary medical evidence.

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Foster v. Heckler, 780 F.2d 1125 (4th Cir. 1986)

The requirement, that there be a direct tie between objective medical findings anda specific level of pain, goes beyond the pain standard under the Disability Reform Act... TheDisability Reform Act requires medical evidence of a condition that could reasonably producepain, not objective evidence of the pain itself or its degree... The ALJ's complete disregard of theclaimant's subjective testimony of pain because of purportedly weak objective medical findings isalone sufficient to require reversal.

Hyatt v. Sullivan, 899 F.2d 329 (4th Cir. 1990)

The court held that by requiring that there be not only objective evidence of anunderlying impairment which could reasonably cause the pain but also objective evidence of thepain's intensity, persistence and effect on work capacity, SSA's current ruling on evaluation ofpain, SSR 88-13, and POMS instructions were contrary to Fourth Circuit law.

Sparks v. Bowen, 807 F.2d 616 (7th Cir. 1986)

"The etiology of many medical conditions is obscure; symptoms are easier tostudy than are causes. That physicians do not know why a person has a condition does not makethat condition any less disabling. Neither the statute nor the regulations visits claimant with theconsequences of shortfalls in medical knowledge, once the impairment is accompanied byobjective indicia. No legislative history suggests that Section 423(d)(5)(A) is designed to compelclaimants to show a medical cause for a medically ascertainable abnormality. The requirementthat a claimant show an objectively verifiable abnormality is designed to screen out claims byhypochondriacs and goldbricks. No claim may be allowed without medical evidence showingthat the complaint has an ascertainable cause.. But once there is evidence of an objectivelydemonstrated abnormality and either (1)... objective medical evidence [confirms] the severity ofthe alleged pain arising from that condition or (2) the objectively determined medical condition[is] of a severity which can reasonably be expected to give rise to the alleged pain," S.Rep. No.98-466, 98th Cong., 2d Sess. 24 (1984), the requirement of Section 423(d)(5)(A) is fulfilled.

Benson v. Heckler, 780 F.2d 16 (8th Cir. 1985)

ALJ erred by discounting claimant's allegations of pain because of lack ofobjective evidence of a physical impairment, and further erred by ignoring uncontradictedmedical evidence the appellant's pain was psychological in origin.

Anderson v. Heckler, 805 F.2d 801 (8th Cir. 1986)

The absence of objective medical evidence supporting the claimant's subjectivecomplaints was only one factor to consider... Subjective complaints may be discounted,however, if there are inconsistencies in the record as a whole, but not discounted solely on thebasis of the ALJ's personal observation of the claimant.

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Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir. 1987)

The Secretary could properly consider claimant's failure to seek professional relieffor her pain as inconsistent with her account of its severity.

Jeffery v. Secretary of Health and Human Services, 849 F.2d 1129, 1133 (8th Cir.1988)

The claimant's pain testimony was found to be credible even though she only tookmild pain medication. The claimant testified to her growing fear of addiction and her increasedreliance upon prescription medications, and her belief that the prescription medications were notappreciably more effective in relieving her pain than the over-the-counter pain killers.

Del Rosa v. Sullivan, 922 F.2d 480, 485 (8th Cir. 1991)

Where an ALJ rejects a claimant's testimony regarding pain, he must make anexpress credibility determination detailing his reasons for discrediting the testimony.

Howard v. Heckler, 782 F.2d 1484 (9th Cir. 1986)

Although we have held that subjective complaints of pain must be accompaniedby medical evidence, and that such complaints may be disregarded if they are unsupported byclinical findings, we have never required that the medical evidence identify an impairment thatwould make the pain inevitable... Furthermore, requiring that pain be corroborated by rigorousproof would overlook the fact that pain is a highly idiosyncratic phenomenon, varying accordingto the pain threshold and stamina of the individual victim.

Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)

If the claimant submits objective medical findings establishing a medicalimpairment that would normally produce a certain amount of pain, but testifies that sheexperiences pain at a higher level (excess pain), the Secretary is free to decide to disbelieve thattestimony, but must make specific findings justifying the decision... "Excess pain" is, bydefinition, pain that is unsupported by objective medical findings. If the Secretary were free todisbelieve excess-pain testimony on the ground that it was not supported by objective medicalfindings, then the Secretary would be free to reject all excess-pain testimony. This court hasrejected that interpretation of Section 423(d)(5)(A).... Congress clearly meant that so long as thepain is associated with a clinically demonstrated impairment, credible pain testimony shouldcontribute to a determination of disability.

Bunnell v. Sullivan, 912 F.2d 1149 (9th Cir. 1990), 947 F.2d 341 (9th Cir. 1991)

This case affirms Cotton, Supra and the "excess pain" standard. (en banc hearing).

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Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987)

While subjective complaints of pain must be accompanied by medical evidenceand may be disregarded if unsupported by any clinical findings, the law has never required anddoes not now require that medical evidence identify an impairment that makes the paininevitable. Imposition of such a requirement would eliminate the occasion for subjectivetestimony in a disability hearing, and trivialize the importance the statute continues to ascribe tostatements of the claimant and his physician with respect to pain.

Luna v. Bowen, 834 F.2d 161, 162 (10th Cir. 1987)

The term "objective" evidence refers to any evidence that an examining doctor candiscover and substantiate. Both physiological and psychological medical evidence is objective,because each is amenable to external testing. "Subjective" evidence consists of statements by aclaimant or other witnesses on his behalf that are not based on information which an impartialmedical expert can evaluate, either from examining the claimant himself or from evaluating theclaimant's test results or examination reports. In other words, subjective evidence is that which adecision maker must evaluate solely on the basis of the credibility of the witness. Luna v.Bowen, 663 F. Supp. 109, 111 (D. Colo. 1987)

Examples of "objective" evidence include the results from x-rays, myelograms,straight-leg tests and physical examinations.

Williams v. Bowen, 790 F.2d 413 (11th Cir. 1986)

A claimant's allegations of disabling pain may be discredited by evidence that heor she has received minimal medical treatment and/or has taken medications, other than aspirin,for pain only on an occasional basis.

Brock v. Secretary of Health & Human Services, 791 F.2d 112 (11th Cir. 1986)

Before an ALJ may reject a claimant's subjective complaints of pain, the ALJmust make express credibility determinations and set forth the inconsistencies in the record thatlead the ALJ to reject the claimant's complaint of pain.

Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986)

The claimant's subjective complaints of pain and sleepiness were not credible inlight of the absence of pain medication, medical treatment for sleepiness, the absence of medicalreference to chest pains, and the absence of nitroglycerine for relief of angina.... It should benoted that neither the ALJ nor the Appeals Council totally rejected Jones's testimony; they simplyfound that it was not credible to the extend alleged, given the medical evidence in the record.

Johns v. Bowen, 821 F.2d 551, 556-7 (11th Cir. 1987)

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It was error for the ALJ to find the claimant's pain testimony not credible basedupon his own observations of the claimant's appearance at the hearing and his own indicia formeasuring claimant's pain, i.e., drawn features, weight loss and muscle atrophy.

Brown v. Bowen, 794 F.2d 703, 706 n.4 (D.C. Cir. 1986)

Although the statute requires such objective medical evidence of an underlyingimpairment which could cause such pain, objective medical evidence of pain itself, such asmuscle atrophy or weight loss, is not necessary. Citing Marcus v. Califano, 615 F.2d 23, 27 (2ndCir. 1979).

c. Practical Considerations In Pain Cases

1. Nature, location, onset, duration, frequency, radiation and intensity of the pain.

2. Medical test results (laboratory findings).

3. Medical doctor's clinical assessments (signs).

4. Doctor's statements about pain (treating physician's opinion).

5. Claimant's persistent efforts to find relief for the pain.

6. Claimant's willingness to try any treatment prescribed.

7. Regular contact with a treating physician.

8. Evaluation or treatment by a pain clinic.

9. Possibility of psychological disorders together with physical problems.

10. Type, dosage, effectiveness and adverse side-effects of any pain medication.

11. Regular use of crutches, cane, TENS unit, heating pad, or other devices to treat pain.

12. Precipitating and aggravating factors.

13. Functional restrictions.

14. Claimant's daily activities.

15. Is pain exertional (experienced upon lifting, walking etc.) or nonexertional(experienced while resting)?

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16. Claimant's credibility.

17. Testimony of witnesses.

18. Failure or refusal to take medication:a) ineffectiveb) side effectsc) addiction or fear of addictiond) mental limitationse) poverty (can’t afford)

19. Need for bed rest to ease pain.

20. Sleep interference.

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20 C.F.R. §§ 404.1529, 416.929

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C. THE VOCATIONAL EXPERT AND VOCATIONAL CONSIDERATIONS

CASE LAW

Where nonexertional impairments significantly limit the range of work permitted byexertional limitations, the grid is not applicable and the Secretary should present testimony of avocational expert or other similar evidence regarding the existence of jobs in the nationaleconomy for an individual with claimant's limitations. Bapp v. Bowen, 802 F.2d 601 (2nd Cir.1986); see also, Pratts v. Chater, 94 F.3d 34 (2nd Cir. 1996).

1. Examples of Nonexertional Impairments

a. Blackouts, coughing spells - Bapp v. Bowen, 802 F. 2d 601 (2nd Cir. 1986).

b. Mental impairments - Fields v. Bowen, 805 F.2d 1168 (5th Cir. 1986); Torres v.Secretary of HHS, 668 F.2d 67 (1st Cir. 1981); Burnam v. Schweiker, 682 F.2d 456 (3rd Cir.1982).

c. Alcoholism - Cannon v. Harris, 651 F.2d 513 (7th Cir. 1981); Murphy v. Heckler, 613F. Supp. 1233 (D.C. Pa. 1985). NOTE: Alcoholism and drug addiction can no longer be a basisfor establishing disability.

d. Pain - Wilson v. Schweiker, 743 F. 218 (4th Cir. 1984); Marshall v. Heckler, 731 F.2d555 (8th Cir. 1984); Bellamy v. Secretary of HHS, 755 F.2d 1380 (9th Cir. 1985); Shultz v.Bowen, 662 F. Supp. 1074 (E.D. Pa. 1986); Huston v. Bowen, 838 F.2d 1125 (10th Cir. 1988);Nelson v. Sec. of H.H.S., 676 F. Supp. 44 (W.D.N.Y. 1987); McRoberst v. Bowen, 841 F.2d1077 (11th Cir. 1988). Pain can be classified as exertional (lifting, bending, reaching, walking,etc.) and nonexertional (resting, sitting, standing for short periods, lifting a coffee cup)impairment. Gatson v. Bowen, 838 F.2d 442 (10th Cir. 1988); Leggitt v. Sullivan, 812 F.Supp.1109 (D.Colo. 1992).

e. Environmental restrictions - Thomas v. Schweiker, 666 F.2d 999 (5th Cir. 1982). Machine trades and bench work, by their nature, often involve exposure to dust, fumes and othersuspended particulates irritating or intolerable to persons afflicted with respiratory ailments. Shelman v. Heckler, 821 F.2d 316 (6th Cir. 1987). It is hard to conceive of many unskilled,sedentary jobs that can be performed in surroundings free of cigarette smoke, perfume and otherlike irritants. Asher v. Bowen, 837 F.2d 825 (8th Cir. 1988), citing Warmoth v. Bowen, 798 F.2d1109 (7th Cir. 1986).

f. Low intelligence, impaired dexterity - Grant v. Schweiker, 669 F.2d 189 (4th Cir.1983).

g. Hearing loss, visual acuity - Burnam v. Schweiker, 682 F.2d 456 (3rd Cir. 1982).

h. Fainting spells, postural/manipulative disabilities - Gagnon v. Secretary of HHS, 666

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F.2d 662 (1st Cir. 1981).

i. Memory lapses, bladder and bowel control - Aggen v. Schweiker, 553 F. Supp. 32(D.S.Dak. 1982).

j. Numbness, obesity, and side effects of medication - Najera v. Sullivan, 902 F.2d 12(8th Cir. 1990).

k. Stress intolerance - Marshall v. Bowen, 871 F.2d 68 (8th Cir. 1989). i. Urinary incontinence - Mac v. Sullivan, 811 F.Supp. 194 (E.D.Pa. 1993)

2. Grid Inapplicable

a. If a claimant's relevant characteristics differ in any material respect from those of thegrid, the grid cannot be applied, and all the pre-existing requirements of case law, including thecustomary insistence on the use of vocational experts, retain their full vigor. McCoy v.Schweiker, 683 F.2d 1138 (8th Cir. 1982).

b. Once the ALJ determines that a claimant suffers from a nonexertional impairment thatprevents her from performing her past work and the full range of other available work, theSecretary must produce "expert vocational testimony or other similar evidence" to establish thatjobs exist in the national economy that the claimant can perform. The Dictionary ofOccupational Titles is not "similar evidence." Fields v. Bowen, 805 F.2d 1168 (5th Cir. 1986).

3. Qualifications of Vocational Expert

a. A V.E. was not qualified where he was a psychologist for a state hospital and hadplaced only ten patients during the preceding two years. The fact that he had testified at 600prior hearings was not determinative. Davis v. Mathews, 450 F. Supp. 308 (E.D.Cal. 1978).

b. A medical advisor's testimony was insufficient to fulfill the vocational testimonyrequirement since there was no indication that the advisor had any training as a vocational expert. Millet v.Schweiker, 662 F.2d 1199 (5th Cir. 1981; see also Pope v. Weinberger, 397 F. Supp.856 (D.C.Pa. 1975).

4. Hypothetical Questions

a. A vocational expert's responses to hypothetical questions posed by an ALJ constitutesubstantial evidence only where such questions precisely set forth all of the claimant's physicaland mental impairments. McMillian v. Schweiker, 697 F.2d 215 (8th Cir. 1983). See also,DeLeon v. Secretary of HHS, 734 F.2d 930, 936 (2nd Cir. 1984).

b. A hypothetical question is incomplete where it does not take into consideration aclaimant's regimen of treatment. Harrel v. Harris, 610 F.2d 355 (5th Cir. 1980); Williams v.

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Harris, 504 F.Supp. 819 (E.D. Tex. 1980).

c. In a hypothetical question, the ALJ must include in his consideration any allegations ofpain. If he excludes pain from his hypothetical, he must set forth his reasons for doing so. Ledoux v. Schweiker, 732 F.2d 1385 (8th Cir 1983).

d. A response to a defective hypothetical question does not constitute substantialevidence. O'Leary v. Schweiker, 710 F.2d 1334 (8th Cir. 1983); Podedworny v. Harris, 745F.2d 210 (3rd Cir. 1984).

e. Hypotheticals harboring assumptions that the claimant can do light or sedentary workare defective. Simonson v. Schweiker, 699 F.2d 426 (8th Cir. 1983); but see, Dumas v.Schweiker, 712 F.2d 1545 (2nd Cir. 1983) where the court approved the use of hypotheticalwhich assumed the claimant could perform sedentary work because there was substantialevidence to support that assumption.

f. It was an error for the ALJ to pose a hypothetical question to the vocational expertwhich required him to make credibility findings, resolve conflicts in the evidence, and interpretmedical reports. Baugus v. Secretary of HHS, 717 F.2d 443 (8th Cir. 1983).

g. A hypothetical question is not useful if it requires the vocational expert to weigh theevidence for probity or to determine the validity of the medical opinion. Gamer v. Secretary ofHHS, 815 F.2d 1275 (9th Cir. 1987).

h. An administrative law judge may not ask a vocational expert a hypothetical questionbased on substantial evidence and then ignore favorable answers. Campbell v. Bowen, 822 F.2d1518 (10th Cir. 1987).

i. In the absence of substantial contradictory evidence, the opinion of a vocational expertcalled by the Secretary, given in response to a hypothetical question that accurately summarizes aclaimant's limitations, binds the Secretary. Odierno v. Bowen, 655 F. Supp 173 (S.D.N.Y. 1987).

j. Unless the record indicates that the ALJ had specific and legitimate reasons fordisbelieving a claimant's testimony as to subjective limitations such as pain, those limitationsmust be included in the hypothetical in order for the vocational expert's testimony to have anyevidentiary value. Embrey v. Bowen 849 F.2d 418 (9th Cir. 1988).

k. ALJ's hypothetical question was defective because it failed to include all findings of avocational rehabilitation facility which had evaluated the claimant for two weeks. Ekeland v.Bowen, 899 F.2d 719 (8th Cir. 1990). Likewise, where hypothetical question failed to mentionneed for rest periods. Ness v. Sullivan, 904 F.2d 432 (8th Cir. 1990).

5. Vocational Testimony

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a. Vocational testimony was irrelevant where the vocational expert testified that theclaimant could perform sedentary work in conflict with the claimant's physician, who stated thatclaimant could only sit for 15 minutes and stand for only one hour. Lackey v. Secretary of HHS,508 F. Supp. 726 (S.D. Ohio 1981).

b. Substantial evidence did not support the reliance given to the vocational expert'stestimony by the ALJ where the vocational expert utterly ignore claimant's residual functionalcapacity. Stamper v. Harris, 650 F.2d 108 (6th Cir. 1981).

c. Vocational expert testimony alone does not provide the necessary substantial evidencefrom which to deduce the capacity to engage in substantial gainful activity when there isoverwhelming evidence to the contrary in the record. DeLeon v. Secretary of HHS, 734 F.2d 930(2nd Cir. 1984).

d. A VE cannot give an opinion as to the ultimate issue of disability or diagnose theclaimant. Dobrowolsky v. Califano, 606 F.2d 103 (3rd Cir. 1979).

e. A VE's testimony was insufficient to support a finding of nondisability where it wasprospective with regard to the claimant's future ability to perform other employment. Thompsonv. Mathews, 561 F.2d 1294 (8th Cir. 1977).

f. Where vocational expert stated he "just really cannot say" whether the claimant couldsatisfactorily perform his work or not, his testimony did not support a conclusion that theclaimant had the residual functional capacity to perform the listed jobs. Cantrell v. Bowen, 804F.2d 1571 (11th Cir. 1986).

g. A claimant cannot be found able to engage in substantial gainful employment wherethe vocational expert testified that the claimant was not employable except in a uniqueemployment situation by a very tolerant employer. Collard v. Heckler, 663 F. Supp. 902 (N.D.Ill. 1986).

h. A vocational expert is not required to name specific employers who actually have jobswhich came within the scope of the claimant's residual functional capacity. Hardaway v.Secretary of H.H.S., 823 F.2d 922 (6th Cir. 1987).

i. The vocational expert conceded that, if the claimant had an absentee rate in excess ofone or two days a month, he'd not be able to work in any of the sedentary or light jobs describedby the vocational expert. Douglas v. Bowen, 836 F.2d 392 (8th Cir. 1987).

j. In the absence of substantial contradictory evidence, the opinion of a vocational expertcalled by the Secretary, given in response to a hypothetical question that accurately summarizes aclaimant's limitations, binds the Secretary. Odierno v. Bowen, 655 F. Supp. 173 (S.D.N.Y.1987).

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6. Vocational Rehabilitation

a. It was a matter of significance that the claimant was denied the opportunity forvocational rehabilitation training because it was doubtful that such services could allow her toengage in a gainful occupation. Shaw v. Schweiker, 730 F.2d 462 (6th Cir. 1984).

b. It was error for the Secretary not to give sufficient weight to vocational report whichprovided evidence of the claimant's actual inability to work and concluded that the claimant'sback made him unable to perform any vocational activity. Gajkowski v. Secretary of HHS, 645F. Supp. 636 (W.D.N.Y. 1986).

c. An individual is physically impaired and hence entitled to disability benefits whileundergoing therapeutic rehabilitation necessary for him to perform substantial gainful activity. Santagate v. Gardner, 293 F. Supp. 1284 (1968).

7. Sedentary Work/Light Work/Medium Work

a. The concept of sedentary work contemplates substantial sitting. Ferraris v. Heckler,728 F.2d 582 (2nd Cir. 1984).

b. The category of sedentary work may not include occupations which allow a worker toalternate sitting and standing as required for his comfort. Deutsch v. Harris, 511 F. Supp. 244(S.D.N.Y. 1981); Ferraris v. Heckler, 728 F.2d 582 (2nd Cir. 1984).

c. Sedentary work will generally require sitting six out of eight hours per day. Wages v.Secretary of HHS, 755 F.2d 495 (6th Cir. 1985); SSR 83-10.

d. The full range of light work requires standing or walking, off and on, for a total ofapproximately six hours of an eight hour work day. A claimant who is unable to do prolongedstanding or walking is unable to do light work. Latham v. Heckler, 635 F. Supp. 378 (E.D.N.Y.1986); SSR 83-10.

e. The ability to do chores at home from time to time is not substantial evidence tosupport a finding of the ability to do sedentary work and cannot serve to contradict medicalopinions about a claimant's capacity for work. Bell v. Bowen, 658 F. Supp. 533 (N.D. Ill. 1987).

f. Being able to sit, stand or walk alternately for only six hours collectively would seem toimpose significant restrictions on ability to perform light work, since light work by definition iswork that requires a good deal of walking or standing or.... involves sitting most of the time withsome pushing or pulling of arm or leg controls. 20 C.F.R. Sec. 404.1567(b). It is by no meansobvious that being able to walk and stand collectively for only half an eight hour day, and to sitfor only two hours at a time, would allow the claimant to perform substantially all of the jobs inthe range of light work. Cf. Rivers v. Heckler, 577 F. Supp 766 (S.D.N.Y. 1984). Furthermore,the claimant's treating physician limited the claimant's combined activities to six hours out of aneight hour day, i.e., to three-fourths of a full day's work. Being able to work less than full time

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would also seem to preclude the ability to perform substantially all of the jobs in the range oflight work. Talbot v. Heckler, 814 F.2d 1456 (10th Cir. 1987).

g. The claimant must be able to perform the full range of light work on a daily basis inorder to be placed in a particular RFC category. Martin v. Bowen, 652 F. Supp. 1270 (D.Kan.1987). Likewise as to the full range of sedentary work. Denson v. Bowen, 681 F. Supp. 1566(M.D. Ga. 1988).

h. A claimant's ability to perform a limited range of light work does not infer the ability toperform a full range of sedentary work. Baker v. Bowen, 697 F. Supp. 430 (D. Wyo. 1988).

i. A prior job cannot be classified as sedentary where the claimant was sitting due to herillness and not because sitting was part of the normal job requirements. Sample v. Shalala, 999F.2d 1138 (7th Cir. 1993).

j. A claimant who cannot bend or twist but who can occasionally stoop is not precludedfrom performing sedentary work. Ownbey v. Shalala, 5 F.3d 342 (8th Cir. 1993).

k. A claimant who must alternate between sitting and standing as needed does not haveexertional capabilities to perform sedentary work. Scott v. Shalala, 30 F.3d 33 (5th Cir. 1994).But see, Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996) where the court found that a claimantwho needed to alternate periods of sitting and standing was not disabled because a vocationalexpert testified that there were some light and sedentary jobs the claimant could perform.

l. A claimant who cannot engage in prolonged walking cannot perform the full range ofmedium work. Hajek v. Shalala, 30 F.3d 89 (8th Cir. 1994).

m. Sedentary work does not require six to eight hours of constant sitting. Sullivan v.Shalala, 886 F.Supp. 568, 577 (E.D.Tex. 1995).

n. It was error for the ALJ to use the medical vocational guidelines to find the claimantnot disabled where the claimant needed to alternate between sitting and standing as needed. Scottv. Shalala, 30 F.3d 33, 35 (5th Cir. 1994).

8. Past Relevant Work

a. In making a determination whether a claimant can perform past relevant work, the ALJmust compare the demands of claimant's past work with existing physical and mental capacities. Mere categorization of the work and the claimant's capacities is not enough; particulars of the joband the claimant's capacities must be considered. Delgado v. Bowen, 782 F.2d 79 (7th Cir.1986).

b. When the proximity in time between the prior work and the date of adjudicationbecomes attenuated to a great degree, the similarity between the prior work and present workexisting in the national economy which bears the same designation, might be lost by intervening

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advancement in the technical arts which define the functional capacity required for suchdesignated work. Slaven v. Harris, 508 F.Supp. 280 (S.D. Ohio 1981).

c. Work performed more than 15 years prior to claimant's claim for disability benefits canbe considered where the extent to which skills and abilities have not changed over the years isinconsequential. See, e.g., Bowman v. Heckler, 706 F.2d 564 (5th Cir. 1983); Lopez-Diaz v.Secretary of HHS, 673 F.2d 13 (1st Cir. 1982).

d. Usual or normal work must be considered to be an activity, which the claimant hasengaged in for a substantial period of time, such that he is familiar with the functional capacityrequired for proper performance of that work and can, therefore, be reasonably expected to be ina position to negate his ability to properly perform some or all aspects of that work. Slaven v.Harris, 508 F. Supp. 208 (S.D. Ohio 1981).

e. Court found it error to consider a one-year position held while recovering from theeffects of a stroke as prior relevant work where a claimant had a twenty-six year working historyas a plumber. Pfalz v. Heckler, 589 F. Supp. 653 (S.D. Ohio 1984).

f. The inability of the claimant to perform her former specific work as a supermarketcashier, because of her inability to stand continuously, did not establish a prima facie showing ofdisability since there are numerous other cashier jobs that may be performed in a sitting position. Jock v. Harris, 651 F.2d 133 (2nd Cir. 1981).

g. Previous work can be considered past relevant work only after such work was found tobe at the substantial gainful activity level. Lauer v. Bowen, 818 F.2d 636 (7th Cir. 1987); Curtisv. Sullivan, 808 F.Supp. 917 (D.N.H. 1992).

h. A claimant must prove that he cannot return to his former type of work, and not justher former job. Studway v. Secretary of HHS, 815 F.2d 1074 (6th Cir. 1987).

i. The Secretary may rely on the general job categories of the Dictionary of OccupationalTitles as presumptively applicable to claimant's prior work, but a claimant may overcome thepresumption that the Secretary's generalization applies to his previous work by demonstratingthat his duties were not those envisioned by the framers of the Secretary's category. Carter v.Secretary of H.H.S., 834 F.2d 97 (6th Cir. 1987).

j. In determining whether a claimant is unable to perform the duties of his formeroccupation, the ALJ is required to decide whether the claimant retains the residual functionalcapacity to perform: 1. The actual functional demands in job duties of a particular relevant job; or2. The functional demands and job duties of the occupation as generally required by employersthroughout the national economy. To make this determination, the ALJ must compare thephysical demands of the claimant's past relevant work with his present mental and physicalcapacity. Williams v. Bowen, 689 F. Supp. 825 (N.D. Ill. 1988).

k. While the Secretary may permissibly categorize the exertional demands of a claimant's

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past job by finding the appropriate DOT listing, he must find such a listing that adequatelycorresponds to the claimant's job (security guard). Paige v. Bowen, 695 F. Supp. 975 (N.D. Ill.1988).

l. Claimant whose past relevant work as a stockroom attendant was light and whosecurrent RFC was sedentary, was found able to perform his past relevant work where such workexisted at both the light and sedentary exertional capacities. Martin v. Sullivan, 901 F.2d 650(8th Cir. 1990).

m. A claimant's sworn description of sedentary nature of job as parts inspector had to beaccepted over statement in disability report that past work required prolonged standing, frequentbending, constant reaching and heavy lifting. Jackson v. Sullivan, 984 F.2d 967 (8th Cir. 1993).

9. Age

a. The Secretary may use the age factor as applied in the grids as evidence of theclaimant's ability to adapt to a new work environment, but this age factor shall not be conclusive. If the claimant then offers substantial credible evidence that his ability to adapt is less than thelevel established under the grids for persons his age, the Secretary cannot rely on the age factor ofthe grids and must instead establish the claimant's ability to adapt to a new work environment byindependent evidence. Reeves v. Heckler, 734 F.2d 519 (11th Cir. 1984).

b. Age, for purposes of applying the vocational guidelines, is assessed as of the date ofthe ALJ's decision. Ryles v. Secretary of HHS, 526 F. Supp. 1141 (E.D.N.Y. 1981).

c. In a case where age is a critical factor in determining whether the grid directs a findingof disabled or not disabled, the Secretary will put the claimant in the next higher age category, atleast where he reaches that age before the Secretary's final decision. Davis v. Secretary ofH.H.S., 634 F. Supp. 174 (E.D. Mich. 1986).

d. A social security disability claimant was properly classified as a person of "advancedage," rather than one "closely approaching advanced age," where the claimant was only threemonths and two days shy of 55 years, had limited job experience and could no longer performprior work. Hill v. Sullivan, 769 F.Supp. 467 (W.D.N.Y. 1991).

10. Education/Literacy

a. The relevant grade level is the functional grade level, not the last grade finished. Cunningham v. Heckler, 764 F.2d 911 (D.C. Cir. 1985); Bailey v. Heckler, 576 F. Supp 621(D.D.C. 1984).

b. At most, one's numerical grade level gives rise to a rebuttable presumption of basicliteracy. Holliday v. Schweiker, 563 F. Supp. 1272 (N.D. Ill. 1983).

c. Rule 201.23 did not apply where the claimant was both illiterate and unable to

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communicate in English. Martinez v. Heckler, 735 F.2d 795 (5th Cir. 1984).

d. Failure to consider language barriers in conjunction with the claimant's physicalproblems is an error of law, even in cases where those physical problems do not themselvesamount to a disability as defined by the Act. Karp v. Schweiker, 539 F. Supp. 217 (N.D. Calif.1982), citing Benitez v. Califano, 573 F.2d 653 (9th Cir. 1978).

e. A claimant's grade level gives rise to an inference of his educational abilities whichmay be contradicted by other evidence. Boone v. Secretary of HHS, 595 F. Supp. 758 (E.D.Mich 1984).

f. A claimant's literacy in Spanish is not determinative of his literacy in English. Zayas v.Heckler, 577 F. Supp. 121 (S.D.N.Y. 1983).

g. For purposes of applying the grids, illiteracy means the inability to read or write. Someone is considered illiterate if the person cannot read or write a simple message, such asinstructions or inventory lists, even though the person can sign his or her name. Generally, anilliterate person has had little or no formal schooling. 20 C.F.R. Section 404.1564(b)(1). Thisdefinition makes explicit that literacy turns upon the ability to write, as well as to read. Dixon v.Heckler, 811 F.2d 506 (10th Cir. 1987).

h. The regulations make clear that you can be illiterate even if you have had a significantamount of formal schooling. Glenn v. Sec. of H.H.S., 814 F.2d 387 (7th Cir. 1987).

i. Evidence in the record did not support a finding that the claimant was functionallyliterate. Eggleston v. Bowen, 851 F. 2d 1244 (10th Cir. 1988).

j. A claimant had a marginal education, rather than limited education despite 8th gradeeducation. Although math skills were commensurate with 8th grade education, claimant read ator below 3rd grade level and needed help filling out checks and in spelling simple words.Walston v. Sullivan, 956 F.2d 768 (8th Cir. 1992); See also, Cook o/b/o Cook v. Sullivan, 812F.Supp. 893 (C.D.Ill. 1993).

11. Transferability of Skills

a. In order for skills to be transferable, the Secretary must show the type of work theclaimant can do. Abilities such as independent use of judgment and responsibility for workproduct are aptitudes, and are too vague to constitute a particular skill. Transferable skills areequivalent to education. Ellington v. Secretary of H.H.S., 738 F.2d 159 (6th Cir. 1984).

b. In looking at a claimant's past relevant work, what is important is whether, semi-skilledor otherwise, imparted skills are transferable to other sedentary work. The ability to use tools,maintain production standards and the like are aptitudes and not skills. The Secretary has theburden of showing that skills are transferable, and a vocational expert must make a showing thata claimant is able to do other sedentary work with little vocational adjustment. Richardson v.

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Heckler, 735 F.2d 962 (6th Cir. 1984).

c. Equating transferable work skills with common aptitudes is an incorrect application ofthe Secretary's policy. Podedworny v. Harris, 745 F.2d 210 (3rd Cir. 1984); Blake v. Secretary ofH.H.S., 528 F. Supp. 881 (E.D. Mich. 1981).

d. Skills cannot be transferred to unskilled work. Podedworny v. Harris, 745 F. 2d 210(3rd Cir. 1984).

e. A skill, unlike a simple aptitude, is acquired and relates to doing a simple act. Skillsrelate to specific vocationally significant work activities, while aptitudes involve only basic workactivities necessary to do most jobs. Blake v. Secretary of H.H.S., 528 F. Supp 881 (E.D. Mich.1988); See also, Miller v. Shalala, 825 F.Supp. 776 (N.D. Tex. 1993).

f. The ALJ must specify the grounds of this "transferability" decision so that the Courtmay determine if it is supported by substantial evidence or not. Ramos v. Secretary of H.H.S.,514 F. Supp. 57 (D.P.R. 1981).

g. Transferability depends largely on the similarity of occupationally significant workfunctions among the jobs. Freeman v. Harris, 509 F. Supp. 96 (D.S.Car. 1981).

h. A finding of transferability was not rendered invalid simply because it was suggestedthat the alternate employment might have required a training period of up to 30 days. Reynoldsv. Heckler, 570 F. Supp. 1064 (D. Ariz. 1983).

i. A finding that the claimant is able to engage in skilled work is insufficient to supportthe conclusion that such skills are transferable. Deutsh v. Harris, 511 F. Supp. 244 (S.D.N.Y.1981).

j. Past experience as a supervisor may not necessarily indicate the possession of skills orthat they are transferable. Ferraris v. Heckler, 728 F.2d 582 (2nd Cir. 1984).

k. A finding of transferability of skills, alone, does not satisfy Social Security regulationsrequiring very little vocational adjustment. Nielson v. Sullivan, 992 F.2d 1118 (10th Cir. 1993).

l. It was error for the Secretary to find that the claimant possessed highly marketable skillswhere she failed to describe any education, training or experience which helped claimant obtainskills and failed to discuss any competitive edge claimant had over others in competing for jobs.Presler v. Secretary of Health and Human Services, 14 F.3d 1107 (6th Cir. 1994).

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12. Jobs In Significant Numbers

a. The issue is the existence of jobs, and not whether the claimant could actually obtainwork if he applied for it. Martinez v. Heckler, 807 F.2d 771 (9th Cir. 1986); Keith v. Heckler,732 F.2d 1089 (2nd Cir. 1984).

b. Whether there are a significant number of jobs a claimant is able to perform with hislimitations is a question of fact to be determined by a judicial officer. Martinez v. Heckler, 807F.2d 771 (9th Cir. 1986).

c. To qualify for disability benefits, the evidence must show that the claimant is unable toengage in any substantial gainful work which exists in significant numbers, either in the regionwhere the claimant lives or in several regions of the country. Karhi v. Califano, 484 F. Supp. 852(D. Mont. 1980), citing 42 U.S.C. Section 423(d)(2)(A).

d. The government is required to present substantial evidence in the form ofparticularized proof that significant numbers of jobs which the claimant can perform exist. Taylor v. Weinberger, 512 F.2d 664 (4th Cir. 1975).

e. Nineteen thousand jobs which the claimant had the residual functional capacity toperform was a significant number of jobs. Claimant's argument that this was an insignificantpercentage of jobs in the Chicago area was without merit. Lanier v. Bowen, 682 F. Supp. 938(N.D. Ill. 1988).

f. A judge should consider many criteria in determining whether work exists in significantnumbers, some of which might include: the level of claimant's disability; the reliability of thevocational expert's testimony; the reliability of claimant's testimony; the distance claimant iscapable of traveling to engage in the assigned work; the isolated nature of the jobs, the types andavailability of such work, and so on. One thousand three hundred fifty to 1,800 jobs was asignificant number of jobs in the region which the claimant could perform. Hall v. Bowen, 837F.2d 272 (6th Cir. 1988).

g. The existence of two isolated jobs is not adequate to support a finding that there is asignificant number of jobs the claimant is able to perform. Walker v. Mathews, 546 F.2d 814(9th Cir. 1976).

h. Two hundred jobs which the claimant could perform was not a "significant" number ofjobs for purposes of the Social Security Act. Ray v. Secretary of H.E.W., 465 F. Supp. 832, 837(E.D. Mich. 1978).

i. Four to five thousand jobs in the national economy which would provide a dust-freeand fume-free environment in which the claimant could perform was not a significant number ofjobs. Leonard v. Heckler, 582 F.Supp. 389 (M.D.Pa. 1983).

j. Jobs did not exist in significant numbers which the claimant could perform where 1,000

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jobs within the state, he could perform, were 500 miles from where he lived and his backproblems prevented him from traveling more than two or three hours in a car. Waters v. Secretaryof Health and Human Services, 827 F.Supp. 446 (W.D.Mich. 1992).

13. Stress

a. Stress is not a characteristic of a job, but instead reflects an individual's subjectiveresponse to a particular situation. It was an error for the ALJ to conclude that the claimant couldperform low stress work where the ALJ made no findings on the nature of the claimant's stress,the circumstances that trigger it, or how those factors effect his ability to work. Lancellotta v.Secretary of H.H.S., 806 F.2d 284 (1st Cir. 1986).

b. A vocational expert testified that a person who was severely limited in his ability torespond to customary work pressure would not be able to function effectively and efficiently inthe following jobs: mobile home park manager, lift truck operator, maintenance worker for anapartment or small commercial building, and groundskeeper. Campbell v. Bowen, 822 F.2d1518 (10th Cir. 1987).

c. When the claimant cannot return to his former work, the burden is on the Secretary toprove that he can perform work in a stressful competitive situation. Caffee v. Schweiker, 752F.2d 63 (3rd Cir. 1985).

d. An ALJ must consider a claimant's stress intolerance in determining her ability towork. Gunnels v. Bowen, 867 F.2d 1121 (8th Cir. 1989). Marshall v. Bowen, 871 F.2d 68 (8thCir. 1989).

e. Although it was undisputed that the claimant was physically capable of sedentary work,there was conflicting evidence as to whether the claimant was too stress-prone to handle even asedentary job without the risk of renewing his acute heart trouble. Mulvenna v. Sullivan, 796F.Supp 325 (N.D.Ill. 1991).

f. A statement by the ALJ that unskilled work is low stress work is questionableand has no basis in fact. Walker v. Apfel, 1998 WL 928672 (D.Kan. Sept 18, 1998).

14. Sheltered Workshops/Environment

a. It is plain that the ability to perform work in a sheltered workshop or similar facility isno measure of the ability to work in a stressful or competitive situation, and is not sufficient tomeet the substantial gainful employment requirements of the Social Security Act. Caffee v.Schweiker, 752 F.2d 63 (3rd Cir. 1985).

b. The possibility of work in a sheltered workshop is not substantial evidence supportinga denial of disability benefits. Gavin v. Heckler, 811 F.2d 1195 (8th Cir. 1987).

c. Substantial evidence did not support conclusion that disability claimant was able to

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work despite her psychological impairments, where psychologists who examined the claimantconsistently found that she almost certainly would be unable to work unless provided with near-ideal, sheltered work environment. Gregory v. Bowen, 844 F.2d 664 (9th Cir. 1988).

d. Work in a sheltered workshop is not substantial evidence supporting a denial ofdisability benefits. Iamarino v. Heckler, 795 F.2d 59, 60 (8th Cir. 1986).

15. Dictionary of Occupational Titles/Selected Characteristics

a. A Job does not have to be listed in the DOT in order to be considered substantialgainful employment. Wright v. Sullivan, 900 F.2d 675 (3rd Cir. 1990).

b. The court rejected the Secretary's argument that the distinction between skilled orunskilled work depends entirely on the 30-day factor. Terry v. Sullivan, 903 F.2d 1273 (9th Cir.1990).

c. SSR 83-10 binds interpretation of the exertional requirements of the job categories setforth in the DOT. Carter v. Sullivan, 909 F.2d 1201 (8th Cir. 1990).

d. The definitional requirements for the jobs listed in the DOT are merely advisory andserve only as a reference for the ALJ and VE. Warf v. Shalala, 844 F.Supp. 285 (W.D.Va. 1994).

e. ALJ's acceptance of expert vocational testimony based on outdated edition of DOT, indetermining whether there were significant number of jobs in national economy that claimantcould perform, was reversible error. English v. Shalala, 10 F.3d 1080 (4th Cir. 1993).

f. When the VE's description of jobs a claimant could perform conflicts with the jobrequirements contained in the DOT, courts have found that the VE's testimony does notconstitute substantial evidence by itself to support a finding that jobs are available. Williams v.Shalala, 997 F.2d 1494 (D.C. Cir. 1993). Accord, Smith v. Shalala, 46 F.3d 45 (8th Cir. 1995).Contra, Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); Conn v. Secretary of Health andHuman Services, 51 F.3d 607, 610 (6th Cir. 1995). See SS R 00-4p.

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D. MEDICAL VOCATIONAL GUIDELINES (THE GRID)

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E. DEALING WITH VOCATIONAL EXPERTS

A vocational expert will generally be called to testify where the claimant most likelycannot perform his or her former job(s) and may be able to perform other work which exists insignificant numbers in the national economy. This testimony is relevant to the determinationmade at step 5 in the sequential evaluation process. Here are some suggestions on how to dealwith a vocational expert at a disability hearing.

1. First and foremost, you need to prepare prior to the hearing to cross-examine the VE.

2. Time should be spent preparing several hypotheticals to submit to the VE.

3. It is often effective to begin your cross-examination with the minimum number ofimpairments you can use to establish disability and, then, in successive hypotheticals, keepadding additional limitations.

4. In preparing a hypothetical, consider all relevant factors that would impact upon theclaimant's ability to work. These could include:

a. Physical residual functional capacityb. Mental residual functional capacityc. Paind. Side effects to medicatione. Regimen of treatmentf. Ageg. Educationh. Pre-work/pre-vocational skills (lack thereof)i. Difficulties in dealing with stressj. Testimony of claimantk. Environmental factorsl. Manipulative impairmentsm. Sensory impairmentsn. Need for rehabilitation (vocational, physical)o. Intelligencep. Memory impairment

5. It is often useful to utilize the D.D.S.'s mental residual functional capacity assessmentin your hypothetical, especially when the claimant is found at least moderately impaired withregard to maintaining attention and concentration, performing activities within a schedule or theability to complete a normal workday and workweek without interruptions from psychologicallybased symptoms.

6. Don't just give diagnosis in your hypothetical. Translate medical impairments intofunctional limitations. Be as specific as possible. Don't say that a spinal impairment limitsclaimant's ability to lift and sit. Say that the impairment restricts his or her ability to lift more

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than 5 lbs. and sit more than 2 hours at a time.

7. Be prepared to respond to the ALJ's questioning elements of your hypothetical byknowing which exhibit would support what you have assumed in your hypothetical. (Note thatthe claimant's testimony could also be the basis for your assumption as to a restriction offunctional capacity.)

8. If the claimant has past relevant work experience, ascertain whether the prior workwas skilled, semi-skilled or unskilled. (The Dictionary of Occupational Titles can be usefulhere.) Also, ascertain all the specific physical and mental requirements of the job.

9. When transferability of skills is an issue, remember that:

- Skills, and not aptitudes, are transferable. - Skills do not transfer from skilled to unskilled jobs.- Where skills are transferable, claimant must also be able toperform at the exertional level of the job.- In order to find transferability of skills to skilled sedentary workfor individuals who are of advanced age (55 and over), there mustbe very little, if any, vocational adjustment required in terms oftools, work processes, work settings or the industry. See, Medical Vocational Guidelines, § 201.00(f). Also, re light work, §202.00(f).

10. You should have a working knowledge of the different levels of exertion required bysedentary, light, medium, and heavy work and the differences between skilled, semi-skilled andunskilled work. See 20 C.F.R. §§ 404.1567, 416.967; SSR 83-10.

11. Make sure the VE has seen all the relevant exhibits.

12. Vocational evaluations from Easter Seals, Vocational Rehabilitation Services, orsimilar facilities can be extremely helpful in assessing functional capacity. If the claimant wasdenied the opportunity for vocational rehabilitation, find out the reason.

13. In the appropriate case, you may want to ask the V.E. whether the claimant has pre-work skills.

14. If the VE testifies, in response to the ALJ's hypothetical, that the claimant cannotwork and you are satisfied that the ALJ’s hypothetcal question is well-grounded in the record,generally, don't ask any further questions.

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F. THE CREDIBILITY FACTOR IN DISABILITY CASES

1. Appeals Council

Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)

When the Appeals Council acting for the Secretary of Health and Human Services differsfrom the ALJ on question of credibility, Council's decision must be subjected to especiallycareful scrutiny.

Seavey v. Heckler, 594 F. Supp. 587, 589 (D. Me. 1984)

Though the Appeals Council has the power in social security disability cases to concludethat testimony, even if uncontradicted in the record, is not credible, Appeals Council cannotdisregard credibility findings of the ALJ in the absence of substantial evidence supporting theCouncil's findings.

Bauzo v. Bowen, 803 F.2d 917, 922 (7th Cir. 1986)

When the Appeals Council rejects an ALJ's credibility findings in a disability case, they must do so expressly and state its reasons for doing so, so that reviewing court can determinewhether the Council's reasons for rejecting credibility findings are based on substantial evidence. Accord, Sorenson v. Bowen, 888 F.2d 706 (10th Cir. 1989).

2. Bolstering Credibility

Spena v. Heckler, 587 F. Supp. 1279, 1283 (S.D.N.Y. 1984)

Generally, while determinations of disability by other agencies are not conclusive indetermining a claimant's disability under the Social Security Act, they are entitled to some weightand they bolster the claimant's credibility.

Maggio v. Heckler, 588 F. Supp. 1243, 1246 (W.D.N.Y. 1984)

Where disability claimant testifies to a disability condition after over 30 years of steadywork, he is entitled to substantial credibility.

Bazemore v. Heckler, 595 F. Supp. 682, 688 (D. Del. 1984)

It was simply not enough for the ALJ to reject allegations of pain by claimant, whosecomplaint of persistent and disabling pain was supported by objective medical findings and byhis own uncontradicted testimony, and whose long work history enhanced his credibility, onground that claimant failed to exhibit requisite degree of agony at disability hearing.

Sidberry v. Bowen, 662 F. Supp. 1037, 1039 (E.D. Pa. 1986)

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The ALJ's explanation for finding that plaintiff's testimony was exaggerated was notreasonable and not supported by substantial evidence where the treating physician and treatingsurgeon identified an objective basis for plaintiff's pain.

Odierno v. Bowen, 655 F. Supp. 173, 178 (S.D.N.Y. 1987)

When the claimant testifies to a disabling condition after a long and continuous period ofsteady employment, his or her statements and the reasons given for no longer being able to workare entitled to substantial credibility.

3. Factors Not Affecting Favorable Credibility Determination

Fyffe v. Heckler, 580 F. Supp. 310, 312 (D. Ariz. 1984)

Claimant's inability to remember dates does not bear on his credibility as to severity of hispain, especially if he is mildly mentally retarded.

Callesto v. Secretary, 587 F. Supp. 1427, 1430 (W.D.N.Y. 1984)

Social security disability claimant could not reasonably have his credibility impugned formere error in statement concerning dates during which he had been able to work; nor did aninconsistent statement regarding ability to walk affect his credibility.

Hatcher v. Secretary, DHHS, 898 F.2d 21 (4th Cir. 1989)

Minor inconsistency between claimant's 1970 statement that he could not drive becauseof problems with his leg and his 1979 statement that he could not drive often or for longdistances was insufficient attack on credibility to justify wholesale rejection of claimant'stestimony.

Felisky v. Bowen, 35 F.3d 1027, 1040 (6th Cir. 1994)

The claimant's testimony concerning her disabling pain was internally consistent andcredible, and the fact that no doctor of record suggested that the claimant needed to lie down forthe length of time she alleged would not, standing alone, discount the claimant's credibilityentirely.

Balsamo v. Chater, 142 F.3d 75 (2nd Cir. 1998)

When a disabled person gamely chooses to endure pain to pursue important goals, such asattending church and occasionally helping his wife go shopping for the family, it would be ashame to hold this endurance against him in determining eligibility for disability benefits.

4. Indicia of Credibility

Cole v. Heckler, 587 F. Supp. 496, 498 (W.D.N.Y. 1984)

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An ALJ must indicate that he has evaluated valid indicia of credibility such as claimant'sdemeanor, evasiveness of answers, inconsistencies in his testimony and/or contradictions withother evidence, before a claimant's assertions of severe impairment can properly be discredited.

Poindexter v. Bowen, 685 F. Supp 1545, 1551 (D. Wyo. 1988)

Claimant's pain testimony was found to be credible where, in an effort to stop pain, heunderwent myelograms, three back operations, steroid injections, and CT scans; he had regularcontact with a doctor from the date of the injury; he had a personality that would predispose himto the development of psychogenic pain disorder; he spent most of the day lying down toalleviate the pain; he testified he could stand for one hour and sit for twenty or thirty minutes; hecontinued to use prescription pain killers; and he had a history of willingness to work if able.

Reyes v. Sullivan, 915 F.2d 151 (5th Cir. 1990)

Inconsistencies between claimant's testimony about his limitations and his daily activitieswere quite relevant in evaluating his credibility.

McClees v. Shalala, 2 F.3d 301, 303 (8th Cir. 1993)

The ALJ properly considered claimant's failure to seek treatment in discrediting hissubjective complaints of pain.

Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993)

The ALJ did not err in discrediting the claimant's complaints regarding the side effects ofpain medication where the record contained no report that the claimant ever complained aboutthese side effects to any physician.

5. Physician's Credibility

Carrillo v. Bowen, 636 F. Supp. 97, 99 (D. Ariz. 1986)

Attacks on claimant's physicians as to their credibility must be supported by evidence asto lack of general qualifications in social security disability action.

Crist v. Bowen, 682 F. Supp. 412, 418 (N.D. Ind. 1988)

Reports of two non-examining disability physicians would not suffice as substantialevidence against several nonconflicting opinions of treating and examining physicians, whennothing in the record indicated that examining physicians were lacking credibility.

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6. Presumptive Credibility

MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986); Hale v. Bowen, 831 F.2d1007, 1021 (11th Cir. 1987); Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988)

If the Secretary of HHS refuses to credit subjective pain testimony, he must do soexplicitly and give reasons for that decision, and where he fails to do so, he has accepted thattestimony as true as a matter of law.

Varney v. Secretary of H.H.S., 859 F.2d 1396, 1398 (9th Cir. 1988)

The Ninth Circuit adopted the ruling of the Eleventh Circuit in Hale v. Bowen, 831 F.2d1007, i.e., "if the Secretary fails to articulate reasons for refusing to credit a claimant's subjectivepain testimony, then the Secretary, as a matter of law, has accepted that testimony as true." Furthermore, administrative record need not be fully established. Hammock v. Bowen, 879 F.2d498 (9th Cir. 1989).

Williams ex. rel. Williams v. Bowen, 859 F.2d 255 (2nd Cir. 1988).

The failure to make credibility findings regarding the claimant's critical testimony fatallyundermined the Secretary's argument that there was substantial evidence adequate to support hisconclusion that claimant was not under a disability. The court reversed the Secretary's decisionand ordered the award of benefits. See also, "Penalizing the Failure to Make Proper CredibilityFindings in Disability Cases:, Clearinghouse Review, December 1989, p. 945.

Allegra v. Bowen, 670 F. Supp. 465, 468 (E.D.N.Y. 1987)

Since the ALJ did not articulate any reasons for challenging plaintiff's credibility, it mustbe assumed that her testimony was accepted as truthful.

Lopez v. Schweiker, Civ. No. B-81-114 (TFGD), December 1, 1982, (Mag. Smith), CCHPara. 14, 432

When the trier of fact determines that a claimant's testimony, or certain aspects of it, isunworthy of belief, an explicit finding on that point must be made. The failure by an ALJ tomake such a finding leaves the reviewing court with no alternative but to conclude thattestimony, if not patently fake or contradicted by the record, is in fact true.

7. Specific Findings

Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 643 (2nd Cir. 1983)

The ALJ is normally expected to note his rejection in whole or in part of the claimant'stestimony.

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Donato v. Secretary of Health and Human Services, 721 F.2d 414, 418-9 (2nd Cir. 1983)

In making his inquiry, the ALJ must make credibility findings when there is conflictingevidence with respect to a material issue such as pain or other disability. If the claimant is foundcredible, his/her subjective pain may not be disregarded.

Smith v. Heckler, 735 F.2d 312 (8th Cir. 1984)

If the ALJ is to reject subjective testimony of family and others concerning disability ofclaimant, it must be specifically discussed and credibility determinations expressed. ALJ failedto accord proper weight to uncontradicted lay evidence.

Anya v. Heckler, 592 F. Supp. 624, 627 (W.D.N.Y. 1984)

Implicit in the ALJ's determination that claimant was no longer suffering disabling painwas rejection of claimant's testimony and corroborative testimony of her husband, and if the ALJdid not fully believe claimant's subjective testimony, he was required to make specific findingssupporting his belief and erred in failing to articulate any reasons for discounting claimant'stestimony.

Chappell v. Schweiker, 599 F. Supp. 1, 6 (N.D. Geo. 1983)

Specific findings as to disability claimant's credibility are necessary and crucial and anALJ's rejection of claim based on pain without such findings is grounds for reversal.

Wagoner v. Bowen, 646 F. Supp. 1258, 1263 (W.D. Mo. 1986)

Although the ALJ may reject testimony on the basis of credibility, such rejections must besupported by legitimate reasons for disbelief and cannot be a guise for circumventing the rulethat objective evidence is not needed to support subjective evidence of pain.

Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991)

In discrediting a disability claimant's complaints of pain, it is not enough for an ALJ tosay that inconsistencies may said to exist with regard to activities of daily living. The ALJ mustset forth the inconsistencies in the evidence presented.

8. Weighing Demeanor Evidence

Belden v. Heckler, 586 F. Supp. 628, 634 (N.D. Ind. 1984)

An ALJ in a social security disability case has an obligation to observe claimant to makenecessary credibility determinations; however, the ALJ may not substitute lay observations forexpert medical evidence.

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Bazemore v. Heckler, 595 F. Supp. 682, 688 (D. Del. 1984)

It was simply not enough for the ALJ to reject allegations of pain by claimant, whosecomplaint of persistent and disabling pain was supported by objective medical findings and byhis own uncontradicted testimony, and whose long work history enhanced his credibility, ongrounds that claimant failed to exhibit the requisite degree of agony at the disability hearing.

Morreale v. Heckler, 595 F. Supp. 907, 911 (E.D. Mich. 1984)

Where social security disability claimant's subjective complaints are consistent with andsubstantiated by medical evidence of record, ALJ cannot discount claimant's complaints solelyon the basis of demeanor evidence.

Baeder v. Heckler, 592 F. Supp. 1489 (D.N.J. 1984)

Bare observations by the ALJ regarding a claimant's "healthy appearance" simply do notconstitute substantial evidence of non-disability, nor are such observations sufficient inthemselves to discredit a claimant's sworn testimony.

Caldwell v.Sullivan, 736 F.Supp. 1076, 1082 (D. Kan. 1990)

The ALJ's finding that the claimant was not credible with respect to claims of mentaldisability because she demonstrated no memory or concentration problems at the hearing and wasable to testify regarding her medical, social, and work history without difficulty was thepsychological equivalent of a "sit and squirm" test and improper.

Cline v. Sullivan, 939 F.2d 560, 568 (8th Cir. 1991)

The ALJ is not free to reject a claimant's credibility on account of the claimant's failure tosit and squirm during the hearing.

9. Appellate Courts

Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994)

When credibility determinations rest on objective factors or fundamental implausibilitiesrather than subjective considerations, appellate courts have greater freedom to review the ALJ'sdecision.

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10. Practical Considerations In Bolstering Credibility

In many cases the deciding factor determining whether a claimant is disabled ornot is the ALJ’s credibility finding. In denying a claim for benefits, the ALJ will usually find theclaimant’s testimony not credible or not credible to the fullest extent. The following factorsshould be considered in trying to bolster credibility.

a. Testimony consistent with the medical record.

b. Determinations of disability by other agencies.

c. Steady work history in the past.

d. Efforts at rehabilitation including vocational rehabilitation evaluations.

e. Compliance with prescribed regimen of treatment.

f. Corroborative testimony - especially by a non-relative.

g. If claimant must change positions (e.g. sitting to standing) at a hearing, notethis on the record if ALJ does not do so.

g. Claimants should be told not to exaggerate their symptoms.

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G. EVALUATING MEDICAL EVIDENCE

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H. THE TREATING PHYSICIAN'S OPINION

The so-called "treating physician rule" enunciated by the Second Circuit Court of Appealsin Schisler v. Bowen, 851 F.2d 43, 47 (2nd Cir. 1988) was modified by the Secretary'sregulations pertaining to the evaluation of medical opinions in 1991 (See, 20 C.F.R. §§404.1527, 416.927). These regulations were approved by the Court in Schisler v. Sullivan, 3F.3d 563 (2nd Cir. 1993). The primary distinction between the "treating physician rule" set forthin Schisler v. Bowen and the regulations is that the treating physician's opinion as to the natureand degree of an impairment was controlling under case law but under the regulations theopinion is controlling only if it is "well supported" by other relevant evidence, particularly bymedical signs and laboratory findings.

A large body of case law has developed within the Second Circuit pertaining to thetreating physician rule. Some case law is no longer relevant but a number of cases are still goodlaw and others may be useful for interpreting the current regulations. These cases are presentedbelow.

It is appropriate for the ALJ to attach greater significance to the opinion of a physicianwho is a specialist in the field of medicine in which the claimant's complaint lies, than to theopinions of those whose special expertise lies in other fields of medicine. Harris v. Heckler, Civ.No. H-84-829 (TEC) October 22, 1985 (Mag. Eagan); Clark v. Weinberger, 389 F.Supp. 1168,1170 (D.Vt. 1974), aff'd 511 F.2d 1390 (2nd Cir. 1975) (See, 20 C.F.R. §§ 404.1527(d)(5),416.927(d)(5)).

The opinion of the treating physician as to the determination of the onset date of disabilityis entitled to deference where it is not substantially contradicted even though contemporaneousmedical records of the disabling impairment do not exist. Wagner v. Secretary of Health andHuman Services, 906 F.2d 856, 861-862 (2nd Cir. 1990). The mere fact that a disabilityclaimant's condition is degenerative does not render invalid physician's retrospective opinion asto the existence of a disability prior to the time that physician first saw the claimant. Rivera v.Sullivan, 923 F.2d 964 (2nd 1991).

There is no requirement that the physician's medical testimony be supported by objectiveclinical or laboratory findings. Bluvband v. Heckler, 730 F.2d 886, 893 (2nd Cir. 1984); Eiden v.Secretary of Health and Human Services, 616 F.2d 63, 64 (2nd Cir. 1980); Cutler v. Weinberger,516 F.2d 1282, 1287 (2nd Cir. 1975); Schisler v. Bowen, 851 F.2d 43, 45 n. 1 (2nd Cir. 1988).However, this rule of law is obviously tempered by the regulations, 20 C.F.R. §§ 404.1527(d)(3),416.927(d)(3).

The opinion of a nurse practitioner who treats a patient is entitled to some extraconsideration, but should not be given the extra weight accorded a treating physician. Mongeur v.Heckler, 722 F.2d 1033, 1039 n.2 (2nd Cir. 1983). The opinion of a treating nurse practitioner is

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entitled to some extra consideration and can carry more weight than the opinion of a non-examining doctor. Rivera v. Heckler, Civ. No. 82-265 (PCD), September 14, 1987 (Mag. Smith).

The Veteran's Administration could be viewed as the claimant's treating physician when ithas treated him for three months in its hospital. Lee v. Califano, Civ. No. H-77-650 (TEC), June3, 1980 (Mag. Eagan), CCH UIR, para. 17,233.

To the extent the ALJ accorded the treating physician's opinion any reduced significanceas a result of the five month treatment period in this case, the ALJ erred as a matter of law.Darnell v. Heckler, Civ. No. H-84-726, September 26, 1985 (J. Cabranes).

The records of a hospital emergency room and out-patient clinic are the functionalequivalent to reports of a treating physician and, as such, must be given substantial weight. Purterv. Heckler, 771 F.2d 682, 698-699 (3rd Cir. 1985).

It was error for the Secretary not to give sufficient weight to the evidence of the treatingmental health professionals. DeLeon v. Secretary of Health and Human Services, 734 F.2d 930,938 (2nd Cir. 1984).

The opinion of a treating chiropractor is not entitled to controlling weight under theregulations. Diaz v. Shalala, 59 F.307, 312-314 (2nd Cir. 1995).

Opinions of consultative physicians may override those of treating sources only ifsupported by substantial evidence. Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2nd Cir. 1995).

The ALJ erred when he did not indicate how much weight he gave to the opinions of thetreating physicians. Sharieff v. Shalala, 877 F.Supp. 104, 107-108 (E.D.N.Y. 1995). See also,Weiler v. Shalala, 922 F.Supp 689, 695-699 (D.Mass. 1996); Sanders v. Chater, 920 F.Supp. 293(D.Conn. 1996); Porter v. Chater, 921 F.Supp. 89 (D.Conn. 1996).

The lack of clinical findings complained of by the ALJ did not justify the failure to assignat least some weight to the treating physician’s opinion, since even if clinical findings wereinadequate, it was the ALJ’s duty to seek additional information from the physician sua sponte.Schaal v. Apfel, 134 F.3d 496 (2nd Cir. 1998). Also, Clark v. Commissioner of Social Security,143 F.3d 115 (2nd Cir. 1998); Rosa v. Callahan, 168 F.3d 72 (2nd Cir. 1999).

Reserving the ultimate decision of disability to the Commissioner relieves SSA of havingto credit a doctor’s finding of disability, but it does not exempt administrative decisionmakersfrom their obligation to explain why a treating physician’s opinion is not being credited. SnellApfel, 177 F.3d 128 (2nd Cir. 1999).

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I. FORMS

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ADDENDUM TO INTAKE

Re housework; the following inquiries should be made:

� Does the claimant need to rest when housework is attempted?� If so, how often or how long?� How many daily housework activities are done?

Also, are there any former activities (housework/recreation) which they can no longer do?

What are a normal day's activities?

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ALCOHOLISM/DRUG ADDICTION

Although disability benefits can no longer be awarded based upon alcoholism or drugaddiction, these questions are useful in determining whether a claimant's substance abuse is asubstantial factor material to the disability determination.

Questions to consider in alcoholism and drug addiction cases:

� History of alcohol abuse

� Hospitalizations (including detox)

� Treatment programs (AA, etc)

WhenHow oftenPresent attendance

� When did you first drink alcohol

� When did you first begin abusing alcohol

� How often do you drink alcohol presently, last year

� What do you drink

� How much do you drink presently, last year

� How often do you become intoxicated presently, last year

� At what times of the day do you drink

� Do you spend time with other alcoholics

� Do you live near other alcoholics

� What's the longest period you've gone without drinking over the past year

� Have you ever injured yourself or others while intoxicated

� Have you ever had a motor vehicle accident while intoxicated

� Have you ever been arrested for public intoxication

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� How do you obtain your alcohol

� If you had a choice between eating or drinking alcohol, what would you choose

� Do you consider yourself to be an alcoholic; why or why not

� Could you stop drinking if you wanted to; why or why not

� Have you ever lost any jobs because of alcohol abuse

� Do you suffer any physical side effects from alcohol abuse:

-tremors-blackouts-seizures-vomiting-diarrhea-dizziness-lightheadedness-blurred vision-numbness-confusion-hepatitis-liver dysfunction-pain-bleeding-weight loss-cramps-tenderness-dehydration

Also look for mental side effects:-anxiety-depression-disorientation-impulsivity-compulsivity-confusion-suicidal ideation-lability-seclusivity-paranoid ideation-delusions-hallucinations

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-impaired judgment-fatigability-decreased ability to concentrate, persist and maintain pace

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PAIN

Questions to consider in pain cases:

� Where

� How often/long

� How intense (describe it - sharp, knifelike, throbbing, dull, piercing, etc.)

� Medication

-Relief-Side effects

� Other treatment for pain:

-exercise-bed rest-traction-TENS unit-back brace-neck brace-recommended posture-hospital bed

� Precipitating or aggravating factors

� Functional restrictions imposed by pain and limitation in daily activities

� Sleep interference

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EVIDENCE CHECKLIST

When interviewing a client it is important to ascertain all sources of possible medical andvocational evidence which would help support the disability claim.

The following is a checklist which includes many of the possible sources of evidence:

1. Treating physicians 2. Treating psychiatrists 3. Treating psychologists or therapists 4. Hospitals 5. Clinics 6. Department of Social Services (Title XIX or SAGA) 7. Disability determinations by other agencies (DSS, VA, etc.) 8. Social workers 9. Public health agencies (visiting nurses, etc.)10. Rehabilitation agencies 11. Easter Seals and other sheltered workshops12. Former employers13. Agencies and businesses where they did volunteer work14. Schools15. Department of Mental Health and Addiction Services 16. Friends and relatives of the client17. Police department records18. Case managers from mental health agencies19. Salvation Army (including adult rehab. centers)20. Alcohol rehabilitation programs21. Chiropractors22. Podiatrists

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PHYSICAL CAPACITIES EVALUATION

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MENTAL RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT

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J. DEFINITION OF DISABILITY

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K. RESOURCE MATERIALS

Statutes: 42 U.S.C. § 401 et seq. 42 U.S.C. § 1381 et seq.

Regulations: 20 C.F.R. Parts 400 to 499

Medical Dictionary: Stedman's, Dorland's, Tabor's

Physician's Desk Reference (PDR)

Diagnostic and Statistical Manual IV for Mental Disorders (DSM IV)

The Merck Manual

Dictionary of Occupational Titles (DOT)

Social Security Rulings (SSRs)*

CCH Unemployment Insurance Reporter (Social Security)

West's Social Security Reporting Service (SSRS)

West's Social Security Claims and Procedures

National Organization of Social Security Claimants' Representatives (NOSSCR) SocialSecurity Forum

HALLEX Manual (Hearings, Appeals and Litigation Law Manual)

Program Operations Manual System (POMS)

Social Security Handbook

* Social Security Rulings are based on case decisions made at all administrative levels ofadjudication, Federal Court decisions, Commissioner’s decisions, opinions of the Office ofGeneral Counsel, and other policy interpretations of the law and regulations. Although SocialSecurity Rulings do not have the force and effect of law or regulations, they are binding on allcomponents of the Social Security Administration and are to be relied upon as precedents inadjudicating other cases. A Social Security Ruling may be superseded, modified, or revoked bylater legislation, regulations, court decisions, or rulings.

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L. SOCIAL SECURITY RULINGS

M. OVERVIEW OF SOCIAL SECURITY AND SSI DISABILITY CASE LAW

N. STANDARDS OF CONDUCT