In this lesson, we will identify a few of the more important symptomatic subtleties that can really enhance your chances of winning a Social Security disability case.

Subtle Case Facts:

The primary duty of a disability advocate is to create an effective argument given the evidence available in the case. In most claims on individuals under age forty-nine, the evidence might support the existence of a severe impairment without necessarily supporting a Social Security decision for total disability.  In this common situation, you can improve the overall effectiveness of your argument by using subtle symptomatic facts found within the claimant’s evidence of record.  By symptomatic, I’m referring to the claimant's medical signs and symptoms.  Here is a simple formula that demonstrates my point:

The more limitations caused by the claimant’s symptoms the more likely you are to win the case.  The other important element in my equation is the severity of the limitations.  The more severe the limitation, the more likely it will result in serious physical or mental restrictions that act to impede work, leading to an allowance determination. 

The Assessment Revisited:

At the beginning of every case, you’ll have an opportunity to determine if the case is worth accepting.  As you know, this process is called a case assessment.  Upon first analysis of a case, which usually occurs during a phone conversation with a potential client, you’ll notice that the same information gleaned from the case assessment interview is also very important to your final argument.  In fact, some of the information gleaned from the case assessment interview may very well determine the outcome of the case.

During a case assessment interview, you will extract a significant amount of information from the client. This information will include the six most important categories of fact that will have the greatest impact on the outcome of the case. These categories of fact are:

1. The age of the claimant.

2. The educational level of the client.

3. Claimant's work history.

4. Claimant's Transferable Skills

5. The diseases suffered by the claimant.

6. The specific medical findings in the case.

7. The claimant's perception and response to his/her condition.

Educational Criteria:  Like age, education is an important vocational factor.  The lower the claimant's education level, the less likely he will be able to adjust to other work.

Work History:  Claimants with a history of physically demanding work with short training periods of less than thirty days, have the most difficult time adjusting to other work.  Add on older age and low education with little or no transferable skills, and you can begin to see how difficult it would be for this claimant to adjust to other work.

Transferable Skills:  Transferable skills are any skills possessed by the claimant that can be used in other less demanding work.   For example, a claimant my have worked as an accountant.  An accountant has to develop many secondary skills like math, reading and organization in order to perform the job. These secondary skills are transferable to other types of work.  Therefore, if a claimant has a high level of transferable skills, he is more likely to be denied benefits.  See note box above for the solution to high transferable skills.

Disease State:  The more severe the disease state, the more likely it will result in serious physical or mental limitations.  Social Security defines a severe impairment as one that causes significant physical or mental restrictions. Therefore, pay close attention to the disease states suffered by the claimant, making sure that you take advantage of every single limitation caused by the disorder.

Medical Findings:  The stronger the medical evidence supporting the claimant’s limitations, the more likely the case will be won. Try to match each impairment with a number of physical restriction that are supported the medical evidence. 

Claimant’s Perception:  If a claimant believes he is truly disabled and unable to work, he will make a much better client for your service! You see, those who are truly disabled almost always act the part.  If the disabled person states that he cannot walk without pain, he probably will manifest this limitation even in the privacy of his own home.  This kind of consistency can really help you to win the case.  It also allows you to further demonstrate the claimant's limitations by using family descriptions of the claimant's limited Activities of Daily Living (ADL).  

You can argue for any Residual Functional Capacity you feel is appropriate and will result in an allowance.  However, you must also provide evidence that supports any symptoms alleged as a result of the impairment.  This is easier if the case is well documented and the claimant lives his Residual Functional Capacity.  The claimant must not exceed the activity level he claims to be limited to. If your client tells Social Security that he can cut grass, paint, vacuum, etc., despite his alleged inability to do sedentary work, he will be given a higher Residual Functional Capacity by Social Security and his case will be denied.

Always attempt to fully exploit the seven factors listed above and use them in your formal argument. These case criteria are extremely important to Social Security, making them just as important to you.  These seven case criteria if properly emphasized in your formal argument can significantly increase the number of cases you win.

Pain as an RFC Issue:

Pain is one of the most powerful criteria you will ever use as a disability advocate.  You should think of pain as live ammunition that can be used in any case where severe pain is alleged by the claimant.  The pain criteria are primarily used as a means of lowering a claimant's Residual Functional Capacity.

Years ago, the Social Security Administration was challenged in court by a number of claimants who alleged that they had not received a fair evaluation of their claims.  They alleged that Social Security ignored the affects of pain in creating an Residual Functional Capacity.  This lack of true consideration of the effects of pain resulted in the denial of benefits.  The Judge agreed and these applicants won their case.  This litigation forced Social Security to consider pain as a significant limiting factor in all cases where it was alleged.

The key issue of this court case focused on whether or not Social Security had given proper weight to the effects of pain in determining a person's ability to adjust to less demanding work. Many of the individuals who were denied benefits previous to this court decision were awarded benefits.  SSA was also forced to rewrite much of its adjudicative policy concerning pain to assure consistency of application of the pain issue.  To this day, Social Security is still struggling to adjust to this powerful subjective symptom.

Using the Six Pain Factors:

We have found that there are essentially six factors that will determine the weight given to a complaint of pain by Social Security.  These factors are related to how well you document the complaint.  The better you document a pain allegation, the more likely SSA will take it into consideration when formulating their RFC.  To properly document pain, you need the following information:

1.  Description of pain
a. Location or site of pain.
b. Quality - shape, dull, arching, radiating.
c. Duration – when does it occur and how long does it last.

2.  What causes or aggravates the pain - standing, sitting, bending, etc.

3.  What relieves the pain - sitting, lying down, extremity elevation, medication, etc.

4.  What physical limitations are caused as a result of the pain?

5.  Pain medications side effects my cause additional limitations even if pain is relieved.

6.  What is claimant's RFC with consideration of his pain?

In order to win a case using pain, you must be sure that the claimant's Activities of Daily Living (ADL) coincide with both the medical findings and any limitations the claimant is alleging. 

Example:  If a claimant states that he is unable to bend at the waste due to pain, this alleged restriction must be supported by the medical evidence.  If he states on his ADL form that he cuts wood for a half hour a day, this inconsistency will completely destroy his credibility in respect to his allegation of a bending restriction.  The advocate would loss this alleged bending limitation as ammunition for lowering the claimant’s Residual Functional Capacity (RFC).

Collateral Sources:

A credible collateral source is anyone who has actually observed on a consistent basis the limitations suffered by that claimant. You can use collateral sources as a means of strengthening the claimant's claim of a physical limitation.  This source is especially important in cases where the claimant is under age forty-nine.  Credible collateral sources include the claimant’s family doctor, a physical therapist who has treated the claimant, a family member or friend who may have cared for the claimant.

Friends and family can be good collateral sources, but a medical professional that has worked directly with the claimant is even better. You may use as many collateral sources as you wish to support any given limitation alleged by the claimant.  Make sure that the alleged limitations are supported by the medical evidence.

Loose Nexus:

In creating a formal argument, make sure that there is a loose nexus between the limitation and the alleged impairment.  A loose nexus implies a logical relationship between a symptom and a disease.  If the claimant’s symptoms or alleged limitations do not fit the impairment, there is no loose nexus.  If there is no loose nexus Social Security will not accept the limitation as being credible.

Another little-known but effective method of fine-tuning your argument is the use of a diary date.  A diary date is the date upon which the case of a disabled individual will be re-reviewed by SSA to determine if the disability continues. This date is also referred to as the medical reexamination diary.  This technique is usually used only at the ALJ appeal level.

Sometimes an ALJ may be hostile to a disability applicant and reluctant to award him benefits.  One way to reduce the ALJ's reluctance, especially in a marginally convincing case, is to offer a shorten diary date. The usual reexamination diary for a person under age forty-nine is three years.  The advocate could suggest a two year diary as a means of reducing the ALJ’s reluctance to award benefits. 

The diary date compromise approach also shows that you are concerned about the costs of entitlement and are willing to do your part to make sure no one receives benefits unless it is deserved. Remember that your common sense is the most reliable tool in the development of a reasonable and logical formal argument.  Use your common sense in evaluating and presenting your case and you’ll enjoy great success as a disability advocate

Onset Compromise:

Another effective approach to lowering an ALJ's reluctance to allow is the onset compromise.  In this technique, you are essentially bargaining for an onset date that may not coincide with the claimant's alleged onset.

For example, a claimant has alleged an onset on 1/1/06.  The case is at the ALJ level and the judge is hesitant to award benefits with this as the onset date.  You could then demonstrate to the ALJ that you and the client are willing to compromise this date to make sure that benefits are awarded. 

The new date might be 6/1/06 which might lower the claimant's overall benefit award, reducing the ALJ's reluctance to allow.  This approach should not be used if there is strong medical evidence supporting the original onset date.  Also keep in mind that this approach could also reduce your fee which is based on the claimant’s back benefits.

Closed Periods:

Another little-known but effective way of reducing ALJ resistance to awarding benefits is the use of the closed period.  The term closed period refers to the beginning and ending dates of an impairment.  In a closed period of disability, an individual is applying for benefits on a medical condition that has resolved itself after lasting for at least twelve months.  This is a somewhat unusual situation, but being aware of it could enable you provide some benefit to your client.

In the above situation, this claimant's case could be argued as a closed period.  Claimant's condition did prevent work for twelve continuous months and even required multiple surgeries for resolution. Considering claimant's impairment, the surgeries and a reasonable convalescence period, makes this a good case to argue for a closed period.

In a closed period you must identify and discuss the claimant's impairment during the period of disability.  That period of disability is referred to as the closed period because no benefits will be awarded before or after this timeframe. 

Identify the dates that disability began and ended is how you would identify a closed period.  Use only the medical evidence during the impairment period to argue your case. You should argue this type of case as usual, except that you must limit your argument to the dates of the closed period.   If the claimant is awarded benefits, he will be paid in one lump sum for the period of actual disability minus the waiting period.
 

The Financial Plea:

Another subtle but effective way of getting the ALJ to agree to at least temporary disability benefit is through the use of the financial plea technique.  This approach essentially involves convincing the ALJ that the claimant's financial situation is actually a danger to his medical survival.

This approach should never be used as the main argument for disability, but it can be incorporated into your standard argument for effect.  Pease note that this approach cannot be used to affect the outcome of a case on the initial or reconsideration levels.  However, the financial plea approach can be put forth as part of an argument presented to the ALJ.

Some of the most effective financial conditions to mention are:

• Losing home
• Lack of survival basics.
• Inability to acquire needed medical attention.
• Inability to acquire needed medications.  

Make sure that the hardship you claim is either a quote from the claimant or is at least verifiable via claimant's family members.  Try to center your argument around sound medical and vocational factors as usual, with the greatest emphasis placed on the limitations alleged by the claimant.

The Pathetic Appearance Plea:

Some new disability advocates have asked the question, when should I actually go to a hearing with the claimant?  Our experience shows that it is almost always good thing to be willing to go to a face-to-face hearing.  The odds of winning at the ALJ level are much greater than at any other time in the disability process.

Going to a hearing with the claimant is especially effective if you have strong medical evidence and a client that appears pathetically impaired.  Examples:  The claimant uses a walker or otherwise appears very ill.  If a claimant looks disabled, this subtle fact can be considered by the ALJ although it will never be cited as a reason for an allowance. This is an unusual but effective method of fine-tuning your argument.

More about the Formal Argument:

A letter citing additional impairments and limitations can be effective at the appeal levels because it forces the examiner or ALJ to carefully re-review the case and to take into consideration additional allegations and restrictions suffered by the claimant.  

The formal argument is the backbone of case representation and each memorandum should be carefully constructed.  If your formal argument makes sense, regardless of your writing style, you have a good shot at winning the case for your client.

Always summarize your argument and make sure your conclusions are in the claimant's favor.  Do not apologize for your position on the critical issues of the case.  Always appear firm in your conclusions with a healthy dose of humility and a willingness to learn from SSA.  They like that attitude!

Keep in mind that an ALJ can consider all physical and mental factors related to a case.  He can also consider findings that have been ignored or overlooked by SSA at a previous adjudicative level.  If you find evidence that has not been properly considered, by all means point it out in your argument.  The claimant is usually the best source for finding additional limitations or allegations.

Primary Objective of an Argument:

The single most important objective of a formal argument is to make the claimant appear as disabled as possible without altering the facts of the case.  We have concentrated our efforts on teaching you how to utilize and manipulate the medical and vocational evidence in a case.  However, a little hardcore emotion in your argument can also go a long way in helping you to successfully present a case. This emotion should stem from your sincere belief that your client deserves Social Security disability benefits.