Practicing Social Security Law

by Alan Stuart Graf

(My special thanks to James Publishing and Tom Bush for allowing me to use a few excerpts and ideas from their book on Social Security Disability Law.)

 The Social Security Disability Claim Appeal Process

Initial Application: Your initial social security disability and/or supplemental security income application can be filed by telephone by dialing 1-800-772-1213. If your claim is denied, you must appeal the denial within 60 days of the denial date. At this stage of the application process, the Social Security Administration contracts the Oregon Department of Disability Services (DDS) to determine whether you are disabled. DDS is located in Salem, Oregon and will contact you by telephone and/or letter during this process. You may be asked to see a doctor, psychologist, and/or a vocational evaluator. If so, please let our office know who you are scheduled to see. It is very important that you keep any evaluation appointments scheduled for you by Social Security. Please be completely honest about your condition and do your best during any testing. Do not exaggerate your condition in any way, as the experts are trained to recognize any exaggeration of symptoms and may use it against you. It normally takes two to four months to receive a decision on your initial claim. If you are denied, we need to file an appeal within 60 days. We normally do not assist clients with the initial application process.

Request For Reconsideration: This stage of the Social Security appeals process is also handled by DDS. At the reconsideration stage, you are asking DDS to admit that they made a mistake when they denied your initial application. As you can guess, DDS usually believes it was right the first time. Do not be surprised if DDS denies your claim a second time. DDS normally makes this decision in approximately four months. If you do not hear anything after four months please call us. DDS may again ask you to see a doctor, a psychologist, and/or a vocational evaluator. If DDS denies your case again, we must appeal their decision within 60 days of the denial date by requesting a hearing in front of an Administrative Law Judge. This is the stage where we normally become involved in a case.

Request For Hearing: Once a Request for Hearing is filed, you will receive a letter stating your request for a hearing has been received by the Office of Hearings and Appeals. If you do not receive such a letter in the first month, please call us so that we can find out why your request has not been processed.

After you have received your letter stating that the Office of Hearings and Appeals (OHA) has received your request for hearing, you will not hear from OHA for about nine to twelve months. The hearing office takes a nine to twelve month period to process the thousands of cases that are submitted to their office. You will normally not hear much from our office during the time you are waiting for your hearing.

During this time period it is important for you to continue to see your treating doctors or medical providers as often as possible for treatment for your impairment. When seeing your providers, make sure you mention to them how your impairments affect your ability to do tasks around the house, interact with others and generally affect your life and lifestyle. Normally, your complaints will be written down in the medical record. This written documentation will help support your case at the upcoming hearing.

After a wait of approximately nine to ten months, you will receive another questionnaire from the Office of Hearings and Appeals (OHA) entitled "Claimant’s Questionnaire." This questionnaire is an indication that your file is being prepared for a hearing by OHA. When you receive this questionnaire, please fill it out completely and send it to our office as soon as possible. We will forward it to OHA and begin to update your Social Security file with current medical records.

We appreciate any assistance that you can give us collecting your medical records because most of the time doctors will not charge the patient for their own records. Doctors almost always charge attorneys for records. Your assistance in securing records will help keep costs you are responsible for paying down. Please do not ask your doctor to write a letter on your behalf for your Social Security case. It can hurt your case rather than help it. Doctors are not aware of Social Security law and without our guidance may write something not in conformity with the law.

Once we receive notice that your hearing is coming up, we will set up an appointment with you to meet with your attorney. At this conference your attorney will review your case, prepare you for the hearing, and determine what additional evidence we may need to collect. This appointment usually takes about an hour.

Next you should receive a formal Notice of Hearing from the Office of Hearings and Appeals stating the date and location of the hearing. You should double check this Notice to verify the information you have been given about your hearing is accurate.

On the date of the hearing, please be at the Office of Hearings and Appeals one half hour before the hearing for additional review of your case with your attorney.

At your hearing, the judge may decide your case at the hearing, although this is rare. If he/she does not approve your appeal at the hearing you may have to wait from two to six months for a written decision. If you have not received a decision by the third month after the hearing, please call us and we will write the judge a letter asking for the status of your case, as a gentle reminder. If the judge denies your case we will have 60 days to appeal the judge’s decision.

Request to Review Administrative Law Judge’s Decision:

If we appeal the denial of your case by the Administrative Law Judge, your file and the decision are sent to the Appeals Council in Falls Church, Virginia for review. The Appeals Council may affirm the Judge’s decision denying benefits, reverse the decision and grant you benefits, or send your case back for another hearing. Normally the AC agrees with the judge’s decision. This appeals process can take anywhere from two months to two years for completion, although usually we receive a decision from the AC within six months. If the Administrative Law Judge’s decision is affirmed we will consider filing a federal lawsuit in the U.S. District Court against the Social Security Administration.

If the AC affirms the judge’s denial we generally recommend that besides filing a lawsuit against Social Security, you file a new application for disability and use the day after the hearing date as your on-set of disability date for this second claim.

If you re-apply, we do not automatically represent you in your new case. You will need to contact us if you would like us to represent you on your second claim. Please do not assume we are your representative for this second claim. If you hire an attorney for the second claim the Administration must receive official notice of your representation.

US District Court:

It will normally takes approximately nine to twelve months to receive a decision from the federal court from the day we file a lawsuit on your behalf, although it may take longer. A lawsuit can produce three different results: 1) the best result is that the federal judge orders the Social Security Administration to pay you benefits; 2) the next best result is that the Social Security Administration (or the court) agrees to send your case back for another hearing, usually with the same Administrative Law Judge; and 3) the worst result is that the court agrees with the Administrative Law Judge’s denial of your case.

If the Social Security Administration or court sends your case back for another hearing, it will take from three to eight months to have that hearing. If the Administrative Law Judge denies your case again, you can appeal that denial directly to federal court.

If the court agrees with Administrative Law Judge’s denial of your case, we have the option of appealing your case to the Ninth Circuit Court of Appeals located in San Francisco. Before we file an appeal with the Ninth Circuit Court of Appeals, we have to be convinced that the federal court made an error that the Ninth Circuit will reverse. Ninth Circuit cases are time, work and paper intensive.

The bottom line for all of our clients is this: if we believe your case has merit, we will appeal all of your decisions until we cannot appeal anymore. The appeals take a lot of time, but we are determined to continue to work on your case until we win for you or until we reasonably cannot do anymore for you.

If you win your case and are awarded benefits, it can take two to six months to calculate your payment amounts and begin payment. If your claim is for SSI, Social Security will ask you to come in for an interview to verify your current and past income.

You can reach us Monday through Friday from 9AM to 5PM (except at lunch time from 12-1) at 503-452-2375 or 503-2285222. If you call us and we are not in, please leave a message and we will try to return your call within 24 hours, although sometimes we may take a little longer than that;

I. The Benevolent Purpose of the Act

            Practicing social security law is one of the most honorable things you can do as a lawyer.

           Besides pursuing and acquiring monthly disability benefits for deserving, chronically ill clients, as an active and regular participant you are positioned to play a part in keeping the social security system on track and true to its guiding principles. In addition to providing benefits to individuals, I believe that the system and its guiding principles act as an invisible glue that holds our society together, serving as a guidepost for and an example of practical idealism.  The system was born from the highest of human ideals and represents the better and more selfless part of our collective mythology.  Its existence, its function and the people it serves reminds us to strive for more kindness, compassion and service to the public in our own lives.

             Arthur J. Altmeyer, the first Secretary of Health and Human Services and a principle architect of the Social Security Act, envisioned that the system would serve as a safety net that would prevent all Americans from falling into destitution. In 1968, Altmeyer stated that:  

The President (FDR) believed strongly that, besides taking the emergency measures necessary to relieve the human distress caused by the Great Depression, it was essential to develop a long-range program to protect the American people from the ill effects of unemployment and other personal economic hazards.

(The Formative Years of Social Security, Arthur J. Altmeyer, University of Wisconsin Press, 1968, pg. 7).

             At first, the safety net was designed to cover Americans who could not work due to old age. In 1954, President Eisenhower and Congress expanded the Act to include Americans who were disabled as well as those who had reached old age.

             The courts have also frequently noted the liberal and remedial intent of the Act. See Gamble v. Chater, 68 F.3d 319 (9th Cir. 1995); Booz v. Secretary, 734 F.2d 1378 (9th Cir. 1984); and Benitez v. Califano, 573 F.2d 653 (9th Cir. 1978).  See also Flaten v. Secretary of Health and Human Services, 44 F.3d 1453, 1459 (9th Cir. 1995)(“...the Act should be construed broadly to accomplish its remedial purpose of protecting disabled workers...”); and see Houston v. Secretary of Health and Human Services, 736 F.2d 365, 371 (6th Cir. 1984)(“...for it must be borne in mind that the Social Security Act is remedial in nature, seeking to provide assistance to those who are medically unable to secure employment, and is to be construed liberally”)(citations omitted); and also see Walsh v. Secretary, 636 F.Supp. 358, 360-361 (E.D.N.Y. 1986) (“care must be taken ‘not to dis-entitle old, chronically ill and basically helpless, bewildered and confused people...from the broad remedy which Congress intended to provide our senior citizens”)(citations omitted); and further see Mitchell v. Gardner, 358 F.2d 826, 832 (U.S. App. D.C. 1966)(dissenting op.)(“the obvious purpose of the Act was the attainment of a humanitarian end; and, like all remedial legislation, it should be liberally construed”).

II. The Elements of the American Philosophy of Social Insurance

              Dean J. Douglas Brown, another principle architect of the system, explained that there are five elements which govern the social security system. (The American Philosophy of Social Insurance, by J. Douglas Brown---http://www.ssa.gov/history/brown2/html).  Those five elements are:

             1. The system must provide protection as a matter of right and not as a benevolence of a government, institution or an employer.

             This element is particularly important for reminding all of your clients that they are not begging the government for handouts. Their claim for social security benefits is a right they enjoy as residents of this country.  Making a claim for benefits is particularly hard on many people’s sense of dignity.  As an advocate it is good to remind your client[2] that what they are asking for is a right they have that they should not be ashamed to assert. An understanding of this basic element also can help shape your posture as an advocate to the Administration.

             2. All citizens should be eligible to coverage under a system regardless of class or level of income.

             This basic principle is useful when advocating for clients claiming Supplemental Security Income (“SSI”) benefits.  SSI applicants who may not have paid regular FICA premiums into the system for reasons of illness or that they were home-keepers or for any other reason are not any less deserving of benefits than regular wage earners.  This principle should be emphasized with both the client and the adjudicators.  In particular it is sometimes necessary to remind adjudicators that SSI claims should be treated with the same measure of respect and believability that are afforded to claimants under Title II (Social Security Disability Income (“SSDI”)).

             3. Under Title II, the individual worker establishes the level of his/her protection by his/her contribution to our economy.

                As Dean Brown notes, “we still believe in America that a man/woman should be rewarded for his/her efforts...the motivation of the individual from within himself/herself is a primary and essential source of power in a free society.”

             4. The Social Security system should protect the family unit.

             The system as it stands today provides some protections for children and for the spouse of the disabled or retired worker. 

             5.  The Social Security system is based upon joint contributions by both employer and employee. 

             Under this last, but not least element, Dean Brown notes that there is a tremendous psychological value from personal contribution to a system as a stimulus to individual responsibility and dignity.

             It is upon this sense of personal involvement and contribution by the citizens of this country that the Social Security system draws its inner strength and permanence.

III. The Strengths and Weaknesses of the Disability System

             The system as it stands today has both strengths and weaknesses.  As a practitioner it is useful to know what these are. 

             A. Dependability

             One major strength of the system is that it is there and has been there for about 65 years.  The checks show up for beneficiaries (most of the time) on time and dependably month after month by mail or by bank deposit.  We should not however take this dependability for granted. It is the Rock of Gibraltar of the system.

             B. Scope of Coverage

             The scope of the system is widespread as well. Not only does the social security disability system cover wage earners and business people, but it also covers people who have not worked for pay on a regular basis.  In other words, pretty much everyone is covered.[3]

             C. Proportionality of Payments/Minimal Payments

             Under Title II of the Act, the benefits paid are proportional to the amount of money previously earned, coupled to the regularity of the earnings.  In other words, the longer you worked and the more money you made, the higher your higher monthly benefits will be.  The benefits can reach as high as $2000 a month (as of January 2001).  Supplemental Security Income, the non-income based disability benefit plan (Title XVI) provides about $550 a month in payments to disabled Americans. Clearly, $550 a month is not enough for someone —  especially someone suffering from a chronic illness — to live on. Nonetheless, the truism that something is better than nothing can help move you as an advocate for your client in spite of this shortfall of the Act.

             D. Constitutional Due Process

             Another important positive aspect of the Act is the required constitutional due process inherent to the system.  This required due process is based on the landmark case of Goldberg v. Kelly, 397 U.S. 254, 267 (1970).  Under the holding of Goldberg, a welfare claimant is entitled to proper and timely notification (see also Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990)), the right to cross examine and confront witnesses, the right to retain counsel, the right to state their position orally, and the right to have the decision maker state the reasons for their decision based upon the applicable facts and law.

             Understanding Goldberg and its progeny is essential in knowing what procedural rights you can assert for your client (especially when the going gets tough).

             The following currently constitute the three biggest negatives of the Act:

             E. Delays

             The system takes way too long to process claims.  There are six levels of appeal (not counting the U.S. Supreme Court) from the initial application to review by the Ninth Circuit.  A claimant first applies for benefits with the state agency Disability Determination Services, which works in conjunction with the Social Security Administration.  If a denial is issued, the claimant can request that the state agency  review their decision as a “reconsideration.”  If a denial is issued again, the claimant then has sixty days to request a hearing in front of an Administrative Law Judge (ALJ).  This administrative hearing provides the constitutional due process protections of Goldberg v. Kelly.  If the ALJ denies a case, the claimant can then appeal to the Appeals Council in Fairfax, VA.  The council can take over two years to make a decision.[4]  If the case is denied by the Appeals Council, the claimant must then sue in Federal Court to appeal this final decision of the Administration.  If a district court judge finds in favor of the Administration, the claimant can appeal that decision to the Ninth Circuit Court of Appeals.  A case can take close to six years to get to the Ninth Circuit.  The greater portion of that time however is spent within the social security system and not within the courts.  Many cases are won at the court level, which means that a Federal Judge decides that the previous four decision makers were wrong.  In my practice, this happens more often than not.  A deserving claimant who is chronically ill should not have to wait years for benefits deserved.

             F. Payments are too small because they are not in keeping with economic realities

             In most cases the benefit payments are not enough to maintain a simple but dignified lifestyle. The payments have not kept pace with economic realities.  We see movement and hear discussion in the legislature about protecting the fund from fraud, but there is very little discussion as to how to shorten the time for payments to occur and whether to raise the level of payment so that citizens can live a decent quality of life even with their impairments.

             G. Accountability is lacking

             Most adjudicators and administrators within the system are fair. However, there are a few bureaucrats in positions of power within the Administration that in varying degrees abuse their power. (Sound familiar?)  This abuse can seriously harm claimants by delaying the payment of benefits to deserving beneficiaries for years while appeals eke their way through the system.

              The Social Security Administration does not currently have an effective system of accountability in place for its state disability analysts and its Administrative Law Judges.

             Within the past few years, federal magistrate Janice Stewart denied a plaintiff/lawyer the right to a judicial remedy for an alleged abuse of power by an Administrative Law Judge but consoled the plaintiff noting that  

...he and countless disability claimants are left with a series of enactments which sound principled, fair, and bound to lead to a just adjudication, but which in reality are toothless pronouncements assuring nothing more than that they will be notified of–but will have no opportunity to challenge–the results of an investigation conducted by SSA.  Congress simply has not mandated any particular standard for disqualification of ALJ’s, seen fit to impose any particular deadlines on the SSA to finalize its bias procedures, or require that the interim procedures outlined in October 1992 follow any specific time line. The SSA has not imposed such standards or time lines on itself, but has instead reserved unto itself the authority to fashion “appropriate” actions.

Lowry v. Massanari, 2001 WL 34047027 (D. Or.) (Apr. 5, 2001) at 12.

             The effect of this lack of accountability has had the effect of pushing the system in an adversarial direction contrary to the Supreme Court’s dictate that social security disability hearings remain non-adversarial. See Richardson v. Perales, 402 U.S. 389 (1971); and Mathews v. Elrdridge, 424 U.S. 319 (1976). On a practical note, because you will probably appear in front of the same ALJs over and over again, it is worthwhile to avoid confrontation.  There are times however, that you must protect your client’s rights to make a record, which may require a certain amount of assertiveness.  All in all, even the most confrontational situations within a social security hearing can be handled with civility.

IV. The Initial Client Contact Sets the Tone for a Long Term Relationship

             When first meeting a client, it is advisable to pay good attention to how the client enters your office.  In fact, if you have a reception area, go out to greet them and guide them back to your office keeping pace with their ability to walk. Notice their body language and their boundaries.  Respect those boundaries.  Be gentle with them, listen to them and be very clear and repetitive in your communications to them. Because the system can take many years to award benefits, you will in all probability be starting a very long term professional relationship.  You want to start it correctly.  Many physical and mentally ill clients have had multiple experiences with sexual abuse and other traumatic events.  It is important to make your client feel safe with you. The more comfortable they feel with you, the easier it will be for them to communicate to you the important details of their condition. 

V. Developing Your Client’s Case

             A. Presenting Your Client’s Humanity

             One important aspect of your advocacy is to present your client’s humanity to the Administrative Law Judge.  An ALJ, like any other human being, can become susceptible to cynicism after listening day after day to people complaining about their problems.  It is your job as an advocate to try to dispel that cynicism by helping to create a communication bridge between your client and the ALJ.  An adjudicator’s cynicism can be diluted through the power of direct, personal and candid communication. 

             Before meeting with my clients for a pre-hearing consultation (usually a month or more before the scheduled hearing date), I carefully read through the entire social security file (which can be obtained at the Office of Hearings and Appeals), noting with particularity the following:

             1. Earnings record and date last insured;

              2. Date of Birth;

              3. Date of Alleged Onset of Disability;

              4. Dates of Application;

              5. Dates of Initial Denials;

              6. Past Relevant Work — which includes the details of the work including the number of hours sitting, standing and the amount of weight lifted.  I also want to note how much money they made at the job.

I place the above information at the top of my notes so that I can have ready access to them at the hearing.

             7. The Claimant’s complaints and any witness’s responses to questions posed by DDS;

             8. The DDS doctors’ reviews and assessments including examining and non-examining doctors;

             9. Any other assessments by medical professionals;

            10. Any opinions or comments by the claimant’s past co-workers, employers and/or vocational rehabilitation experts; and

            11. The entire medical record noting when and where the record supports a finding that the claimant cannot work full-time.

             When I first meet with my clients for the pre-hearing consultation, I tell them that our meeting has two purposes. The first is that I will get to know them better beyond our chats on the phone and my read of their medical records.  The second purpose of our meeting is to practice for the big event — the hearing.  I tell my clients that I will never tell them what to say, but I will suggest to them ways that they can communicate their pain, their mental deficiencies and their limitations better to the ALJ. 

             For example, I instruct my clients to look right at the ALJ when testifying and to pay really good attention to the questions asked.  I ask them to just answer the question posed and to not ramble on with their life story.  I ask them to allow me to lead them through their complaints and trust me that I will ask the questions that allow them to tell their complete story.  I also ask them to treat the ALJ and talk with the ALJ as they would talk with a friend about their problems.[5]  See the next section for more detail on how the client should behave and testify at a hearing.

             The administrative hearing is a big moment for people, who have waited over a year while struggling with a chronic illness, to get to tell their story to a real live human being.  They want to make sure, understandably, that they do not leave anything out.  Their trust in you from the get-go that you will help them present their complete story is an essential element in effective representation. It is your challenge as an effective advocate to present your client’s story in the most complete and convincing manner within the short time frame allowed at the hearing.  One hour is the usual time allowed.

             B. The Structured Interview

             It is good to use and have a structured but flexible interview for your pre-hearing conference with standardized questions.[6]  A standardized questionnaire can keep you on track particularly with a mentally ill client who has a hard time staying focused.

             The following is a sample outline of the questions I ask my clients during an interview.  The outline is malleable and should be shaped and molded to fit the client’s individual condition.

                         1. Name - Age

             Age can be a decisive factor if the client is over fifty. At that point, the Medical-Vocational Guidelines (known as the “Grids”) may prove decisive in the disability determination.

                           2. Work

             The first question I usually ask clients is — “are you working?”  You may be surprised to discover that during the year or more of the hearing waiting period some clients either got better, decided to “soldier on through” because they didn’t want to starve to death while waiting for the hearing, or decided that they could work after all and really didn’t need benefits.[7]  If they are currently working, find out how long they have worked, whether it is full time or part-time, and whether the work has been sporadic or continuous.[8]  You might decide based upon what they tell you to attempt to negotiate a closed period of benefits with the ALJ prior to the hearing.  Some ALJs will entertain phone calls in the spirit of negotiation, while others expect letters and others do not want to hear from you until the day of the hearing.  Know your judges’ procedures.  They all differ to varying degrees.

             Next, question the client as to what type of work they have done in the past including their work history with dates and reasons for leaving the job.  This can help you ascertain whether the client can return to that type of work and whether they have any transferable skills to other work. It will also help you determine whether your client has a history of decompensation on the job due to their claimed impairments.

             The next question (the BIG ONE), is why they cannot currently work, along with the question of when their disability began.  You want to know if they have a medically determinable impairment that has limited their ability to work full-time for at least a year or if they have a reasonable expectation that their impairment will limit their ability to work full time for the next twelve months.[9]  Please note that the term “medically determinable impairment” does not mean “firm diagnosis.”  It is worth quoting the statute:  

An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require.    An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability.    Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability.  Any non‑Federal hospital, clinic, laboratory, or other provider of medical services, or physician not in the employ of the Federal Government, which supplies medical evidence required and requested by the Commissioner of Social Security under this paragraph shall be entitled to payment from the Commissioner of Social Security for the reasonable cost of providing such evidence.            

42 USCA § 423

             Noteworthy under this fundamental statutory section which defines “disability,” is that there is no statutory requirement for the claimant to furnish “objective medical evidence” of an impairment.  I will repeat this part again because it is so important and so misunderstood by many adjudicators.  There is no statutory requirement to furnish objective medical evidence of an impairment.

             As the statute provides, “medically acceptable clinical or laboratory diagnostic techniques” are sufficient to establish a medically determinable condition.  Accepted clinical techniques include physical examinations, clinical observations, and clinical history.  Psychiatrists rely almost completely on patient interviews to formulate their diagnoses.  Don’t let any adjudicator tell you that you need objective medical evidence to prove a medically determinable impairment or that your client must have a firm medical diagnosis.  For example, “possible MS” can qualify as a medically determinable impairment because it has been established by “medically acceptable clinical diagnostic techniques” such as clinical observation and the process of eliminating other illnesses.

Back to work

             Next, under the topic of work, it is good to have your client describe the progression of their illness and how it affected their last job or jobs.  Usually with a chronic impairment, the illness does not pop up over night.  Most disability claimants start suffering at the job and make valiant efforts to sustain their livelihood before finally succumbing to the effects of their disabling disease.  This history is particularly important to know and to have the claimant describe to the ALJ at the hearing. This work history should include the intensity, the symptoms and the progression of the disease, including any unsuccessful work attempts.

                         3. How are you affected today (Physical Impairments)?

                                     a. Physical stamina, muscle strength.

                                     b. Numbness, tingling.

                                     c. Memory, concentration, fatigue, social skills.

                                     d. Pain.

             Pain and fatigue are the two most prevalent and debilitating effects of physical ailments. The development of these two symptoms can be the most important part of your advocacy.  These symptoms are also the most vague and hardest to quantify. 

             I divide my pain questions into the following categories:            

                        1. How often do you experience pain?  (Hourly, daily, weekly, etc.)  

2. How severe is the pain experienced? (on a scale of 1-10, 10 being the most severe.)  

This question can be sub-divided as follows: a) ask the claimant to describe the range of pain experienced from low to high; b) ask the claimant to describe the pain experienced when on medication until after the effects of the medications wears off; and c) ask the claimant to describe the pain in different parts of his body and contrast those parts in terms of severity of pain.    

            It sometimes helps to describe the severity of the #1 point on the pain scale as something like a mosquito bite, and the #10 point as something as severe as child birth or the need to go to the emergency room.  

3. What physical positions or activities aggravate the pain?  

             This question allows the claimant to start to describe his or her actual limitations from pain.  If a certain activity can’t be performed with residual pain, then that activity becomes limited or non-existent.  For example, to the question “can you vacuum your house,” the answer might be “at times I can, but I pay for it later.”  Your follow up should be “how do you pay for it,” or “how long are you down or unable to do anything after you vacuum?”

                          4. Where do you experience pain?  

                         5. Do you have good days and bad days?

             This question is extremely important to diseases like chronic fatigue syndrome, fibromyalgia and mental disorders.  Many chronic pain claimants and mental health claimants have good days and bad days.  On some days, they could perform the duties of a full-time job, but on other days, they may be confined to bed.  It is important to establish through their testimony that certain activities they engage in are not indicative of their everyday lives.  I emphasize this point because often an ALJ will conclude that because a claimant can do some activity part-time, he or she can also do that activity full-time.

             Questions about a claimant’s fatigue should follow, following the same format as the pain questions listed above.

                         4. Treatment

             Now that you have discovered how much the client hurts, you must now find out what they are doing to improve their condition or treat their pain.  Their attempts at treatment and their follow-through with treatment are crucial to credibility findings.  See Social Security Regulation (“SSR”) 96-7p. 

             Consistent with SSR 96-7p, you should obtain the following information during questioning at the hearing:

                         a. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;

                         b. Treatment other than medication the individual receives or has received for relief of pain or other symptoms;

                         c. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and

                         d. any other factors concerning the individual’s functional limitations and restrictions due to pain or other symptoms.

             You also want to ask your client if they have been following the treatment recommended, and if not, why not (e.g., they cannot afford it, or the side-effects were too severe).  An ALJ must consider a claimant’s reasons for not following treatment recommendations.  SSR 96-7p.  In Gamble v. Chater the Ninth Circuit Court of Appeals found that an ALJ erred by finding a claimant not disabled on the basis that a prescribed prosthesis would allow Plaintiff to work, where the claimant could not afford the prosthesis.  Gamble v. Chater, 68 F.3d 319 (9th Cir. 1995).                         

                        5. Doctors and Treating Sources

             The most important piece of evidence that you can submit is a treating doctor or psychologist’s opinion about the functional limitations of your client.  You should ask your client if his or her doctor supports their claim for disability.  Be careful, however, to make sure your client understands that they should not be talking to their doctor about their disability claim.  That is your job as the advocate.  Some doctors will write in their chart notes that the patient is questioning them about disability, and this can reflect badly on the claimant’s credibility.

             Additionally, most doctors do not understand the statutory definition of disability and that the definition can vary depending upon the age, education and prior work of the claimant. It is up to you the advocate, to educate the doctor about what defines disability and whether his patient meets those definitions.  See below for sample treating doctor phone interview.

             You should find out from your client who their treating sources were at least a few years before the date of the alleged onset of disability, because those medical records can reflect on the progression of a disease or condition.  Additionally, doctors who know their patients can comment on their accuracy and tendency or non-tendency to embellish or exaggerate.

                         6. Hospital and ER visits

                         7. Functional Limitations

                                     a.  Concentration and Memory

             Your questioning here should focus on how the claimant’s symptoms of pain and/or fatigue affect their ability to concentrate.  Focus your questioning on whether they can follow something simple like an hour-long television program, or read a book, wash a load of dishes, or do the laundry.  Besides the inability to sustain concentration, you may also uncover information concerning the claimant’s inability to stay on task for two or more hours due to pain.  They may have a need to lie down or put their feet up during the day.  Again, establish how often these needs arise and how long the periods of rest are.  

b.  Sitting, Standing, Lifting, Walking, Squatting, Crawling, Bending, Turning, Twisting, Fingering, Feeling, Manipulating, Grabbing, Grasping, Squeezing, Pushing, and Pulling  

            Use these functional activities to assess and determine what your client can do, how long they can do it, and with what intensity (e.g., weight limitations or limitations on repetitive activities).  Find out whether your client can do these activities on a daily basis or only a few days per week or per month, and also if there are some things they can only do on “good days.”

             The client’s limitations in the use of the hands can make a big difference in what kind of job they can perform.  This type of evidence should be developed both with your client and the treating doctor.  Some typical questions might be: can the client grasp, how long can they grasp objects, can they use their hand for fine manipulation or for gross manipulation, or do their hands turn numb so they can’t feel the objects they are fingering?

             Read carefully and understand the definitions of sedentary, light, medium, heavy and very heavy work in formulating your questions to your clients. See 20 C.F.R. § 404.1565; SSR 83-10.  Just because you can lift 10 pounds frequently does not mean you can do light work if you cannot stand on your feet more than 1 hour per day.  I recommend that anyone who does not know how much ten pounds really weighs to go to a gym and lift a barbell that is rated at ten pounds, and repeat that lifting up to 1/3 of the work day, which would qualify you (if you were able to sustain such activity for months on end) for only sedentary work.  A gallon of milk is used as a reference point by some ALJs as weighing 7 pounds.  At hearings, it is not unusual to hear a claimant asked if they can lift a gallon of milk or a bag of groceries.

                        8.  Activities of Daily Living

             What your client does during his or her day can serve as a primary basis for a favorable or unfavorable decision.  Initially, when your client first applied for benefits, he/she filled out a form for DDS stating what his daily activities were.  You should look at these initial forms and base some of your questions to your client on them.  There are a few purposes behind this approach.   

            First, you want to reacquaint your client with his previous testimony and make sure he hasn’t substantially changed his testimony.[10] The ALJ may look at his prior testimony to see if there are any inconsistencies with the claimant’s current testimony. Next, you want to determine if the claimant’s condition has gotten better, worse or remained the same.

             Further, it is advisable to expand upon the claimant’s responses from the form as the form does not encourage detailed answers.  For instance, if the DDS form asks if the claimant can vacuum and he answered yes, then it is important to establish just how much the claimant can vacuum during the day and whether there are any residual effects such as pain and/or fatigue from that activity.  

            It is also important to establish what exactly the claimant does around his house; how much time he spends with each activity; what effects those activities have upon him such as causing pain or other symptoms; and how much time he needs to recover from those symptoms.

             If the claimant lives with another person, establish what percentage of the household duties the clamant does and whether the claimant needs assistance in performance of those duties.

             You also want to ask whether the claimant gets any help with household activities from family, friends or care givers.  If those people are available, I suggest having them call you so you can guide them through composing a letter which gives their assessment of the claimant’s limitations.[11]

                        9. Education

             Questions here should seek the type, depth and history of education from formal to informal.  Also, find out what job skills, training and special tasks a claimant has had, especially within the past fifteen years. 

                       10. Other financial means of support

             Some ALJs are interested in this information, although arguably it is not relevant to a disability determination. Nonetheless, it is helpful to know if your client lives under the Morrison bridge or is living off his rich uncle Paul. 

                        11. Other disability determinations

             If the client has been found disabled by another forum or institution, you should secure those records as that determination will be considered by the Administration in making its own determination. A Veterans Administration determination of disability at any percentage is now relevant to a social security disability determination.  McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir 2002).

             C. Mental Health Questions

                                     1. Tests Taken — WAIS, MMPI, others.

                                     2. Names and addresses of mental health professional who have evaluated or treated the claimant.

                                     3. The claimant’s mental health diagnosis.

                                     4. Ability to concentrate. 

             Questions here should focus on the claimant’s ability to stay on task and stay focused for two hours or more.  Also, the ability to concentrate can vary depending on the severity of the mental state at any given time (e.g., bipolar disorder).  Gather information on a longitudinal basis over a number of years to determine if your claimant’s condition has declined, improved or stayed the same over time.[12]

             A key point is how pain and/or fatigue affect your client’s ability to concentrate and/or stay on task.  You also want to know how the combination of pain and mental disorders affect their ability to concentrate and stay on task.  This question, as noted below, is an important one in cross-examination of the Medical Expert (ME).

                                     5.  Question your client about how their mental illness previously affected their ability to work to determine if they have had a history of decompensations while on the job.

                                     6. Ask your client how he or she gets along with people. Do they have friends? Do they contact or see relatives?  How do they feel in public?  Do they avoid going out, and how much time do they spend by themselves in their apartment or house?  Further, ask how they do with people in authority positions such as employers.  How do they feel about being pressured to perform at a certain rate and pace and always being expected to meet someone else’s expectations? 

                                     7.  Ask your client how he or she handles stress, pressure, and criticism that they will encounter on a regular basis at a job.  Do they have to leave their work station and cry?  If so, how often and for how long?  Do they have an anger problem?  Do they blow up easily?  When they blow up are they loud, do they curse, do they destroy property, or have they injured anyone including themselves?

                                     8. Ask the client if they are taking care of themselves in terms of their personal habits.  This is sometimes apparent from both personal observation and smell.  Do they have cycles in which they neglect themselves.  Claimants with Bi-polar disorder will have times in which they fall apart.  Try to determine their cycles and how long they last.

                                     9.  Ask them whether they once participated in activities that they now no longer practice.  Do they have any activities that they do for fun or enjoyment?

                                     10.  Ask the client about both short and long term memory.  If their memory is bad, how do they compensate for it, e.g., notepads, lists, people reminding them.  Are there examples of failings of memory where they did something dangerous such as leaving the stove on?

                                     11. Ask them about the effects of depression. Ask if they feel depressed, if they feel worthless, if they have recently lost or gained a lot of weight, how they sleep, and if they think of suicide or have attempted it. 

                                     12. Do they experience anxiety or anxiety/panic attacks?  If so have them describe the symptoms of the attack, including the severity and frequency.

                                     13. Do they experience shakes, tremors, or have any part of the body that they cannot control?

                                     14. Do they have hallucinations or delusions?  Describe this to your client as seeing or hearing things that they have not seen or heard before OR things that they think they should not see or hear but do.

                                     15. Ask your client if she believes someone is trying to harm her, or if she thinks others are talking behind her back.

                                     16. Finish the conference with a claimant who is basing their claim on mental health problems by asking them if there are any other ways in which mental problems would prevent them from working.

             D. Advice to the Client regarding his/her testimony at the Hearing

             Summarize and describe for your client what happens at the hearing. Dispelling the unknown makes for less uncertainty and less anxiety. Inform the client that when they arrive at the hearing building, ALJs or other social security workers may observe them outside the hearing room and reach conclusions based upon their outside observations. But, see 20 C.F.R. § 404.953, which provides that the ALJ cannot base her decision on evidence outside the record.  

                        1. Clothing  

            I advise my clients to dress casually and not to dress up.  In fact I had a client who came to the hearing with her nails and hair neatly done.  The ALJ later used her appearance as one factor in disqualifying her.  Subsequently, a federal judge rejected the ALJ’s use of the claimant’s clothing as a credibility factor.

                        2. Testify truthfully

             Emphasize to your client how important it is to be accurate and truthful at the hearing, including any criminal acts they may have committed as well as drug use.  The hearings, the evidence accumulated and the decisions rendered are private and not open for public scrutiny except in limited circumstances.[13]

             Play acting or pretending to cry should be discouraged; however, the client need not suffer silently or minimize their problems (which is the case more often than not).

                         3. Areas of Testimony  

Let your client know questions will be asked of them at the hearing concerning:

             1.         Work history particularly in the past fifteen years

               2.       Education and any job related courses they have taken

              3.        Medical history which includes treatment, prescribed medications and any other treatment

              4.        Symptoms and the severity of those symptoms

              5.         How their symptoms effect their ability to work

              6.         The type and amount of activities they perform during their day to day lives

                         4. Work History/Education, Job Training

             For work history, inform your client that she will be asked to describe job duties on her last job and on all signif­icant jobs she has had during the past fifteen years. The judge will want to know how much weight she had to lift on each job and about how much time during the workday that she spent sitting, standing and walking on each job. He will also ask what difficulties she had performing past jobs because of her health, and why she left each former job, especially her last job.

             The judge will also ask about job skills. If the client worked at semiskilled or skilled work, it is important that you prepare your client to describe her skills accurately. Make sure the client is aware to not puff up her skills.  This is not a job interview.

                         5. Symptoms

              Symptoms are how the claimant feels.  It’s up to the client to describe those symptoms to the judge in as much vivid detail as possible. If the judge says to your client, “Why can’t you work,” explain that she should answer the question in detail and not say, “It’s because I have arthri­tis,” etc.  Lots of people who can and do work have the same impairment, so telling the judge the name of the health problem really tells him nothing. What the judge needs to know is the severity of your pain and other symptoms.

             Explain to your client to be specific when describing her symptoms. Don’t just say, “It hurts.” Describe what the symptoms feel like, the same way they have probably described their symptoms to mem­bers of their family. Describe the nature, intensity, and location of pain, whether it travels to different parts of their body, how often they have pain, and how long it lasts. Explain if they feel different from day to day. Explain what starts up their pain or other symptoms, what makes it worse and what helps relieve it.