iAppeals

Per POMS GN 03101.125, claimant representatives must file the Request for Reconsideration (RFR) or Request for Hearing and the Disability Report prior to the appeal deadline or the appeal will not be considered timely filed.

Obesity

A BMI of 40 or more indicates “extreme” obesity (SSR 02-1p).  Obesity may be an important aspect of a disability claim.  An ALJ is required to consider the nature, severity, and functional effects of obesity when determining the claimant’s RFC.

Definition of “Light” work

According to 20 CFR 404.1567, light work requires a “good deal of walking or standing.”  Most vocational experts and folks that handle disability claims will tell you that light work generally requires the ability to lift 10/20 pounds and stand/walk for about 6 hours per day.  Interestingly, the cited regulation does not specifically state that light work requires standing for 6 hours per day.  Although 20 CFR 404.1567 does not state that light work requires standing on a frequent basis, SSR 83-10 does:  “the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8 hour workday.”

Examining versus non-examining medical opinions

At some point during a Social Security Disability claim, the file will probably be reviewed by at least one medical source at the request of the agency processing the claim.  In years past, such opinions were often ignored by claimants, claimant representatives, and the judges deciding the claims at the hearing.  The reason they were ignored is because the medical opinions were from non-examining/non-treating sources who often had very little in terms of medical records to review.  Not surprisingly, essentially every single opinion from the non-examining/non-treating medical source would be that the RFC was one level above what was required for a finding of disabled. Thus, if a claimant was 51 and would “GRID” at sedentary, the medical opinion would almost always state that the claimant could perform “light” work.   Some of those medical opinions are not even filed with the medical exhibits, but rather, are found in the prior decision or determination documents.

Recently, I’ve noticed the opinions of these agency employee physicians are being given much more consideration by the ALJs.  There are probably a couple of reasons for this phenomenon.  There is some evidence that ALJs are being steered into a “norm” in terms of approval/denial percentages. In other words, an ALJ that approves “too many” disability claims will be scrutinized very closely.  Presumably, the same would be true of an ALJ that denies “too many” claims. Be that as it may, an easy way to justify the denial of a claim is to rely on the non-examining/non-treating medical source.  And, you can be certain that almost every case (at least in this area) that reaches a hearing will have a medical opinion stating that the claimant is not disabled.  Otherwise, the case would probably not be at the hearing level. There are even a few ALJs who believe that the opinions of the non-examining/non-treating medical sources are entitled to “more weight” than a treating source because the agency employees are “experts” in the field of disability evaluation.

The fact that ALJs seem to be giving much more consideration to the state agency non-examining/non-treating medical opinions is particularly troubling to claimants because quite often, it is difficult to determine what type of doctor is rendering the opinion. I have seen on more than one occasion where the doctor relied upon by the ALJ to deny the claim is a pediatrician or a gynecologist and my client has a lower back issue.  Thus, you can have a controlling medical opinion on a claimant with a spinal condition  rendered by a gynecologist who has never seen the patient and who has reviewed only a handful of the medical records.  Of course, with a good ALJ, such an opinion would be given little weight.

Keep in mind, the regulations provide: “Generally, we give more weight to the opinion of a source who has examined you than to the opinion or a source who has not examined you.”  Thus, a consultative examination should generally be given more weight than a non-examining medical opinion.  And, of course, a treating physician should also be given more weight than a non-examining and/or consultative examiner.  However, the days when treating source medical opinions would all but guaranty a favorable decision appear to be over.

Recent Data Troubling

According to the Social Security Forum (Vol. 36, No. 11):

  • Allowance rates are on the decline.  In other words, less people are being approved for disability.
  • Senior advisor fully favorable decisions are decreasing.
  • Over one million cases are pending at the ALJ level.
  • Fewer people are applying for disability

Denials on the Rise

Whatever the reason, a trend is developing: approval rates have dropped at every administrative level.  In 2009, 37% of applicants were approved on initial application for dsiability.  Last year, the approval rate dropped to 33%.  In 2007, Administrative Law Judges approved 62% of the disability claims adjudicated. Last year, the approval rate dropped to 48% nationally, which is the lowest rate in over 30 years. Whereas in the past there were arguably a very small percentage of folks approved that were not truly “disabled” under the Act, we are now seeing disabled individuals being denied.  The pendulum has swung, and it has swung too far.

2015 COLA

There will be a 1.7% cost of living adjustment for Social Security and SSI beneficiaries in 2015.

  • SSI:
    • Individual: $733 per month
    • Couple: $1,100 per month
  • Trial Work Period: $780 per month
  • Maximum Taxable Earnings: $118,500
  • Earnings required for quarter of coverage: $1,220
  • SGA
    • non-blind: $1090
    • blind: $1820
  • Retirement earnings test exempt amount:
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