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Three Winning Arguments in Disability Cases

As a large federal bureaucracy, the Social Security Administration has a dizzying array of procedures and forms that it uses to process disability cases.   Social Security procedure manuals require disability adjudicators and judges to use something called a "sequential evaluation process" to evaluate every disability case.   In case you are interested, the five steps of the process are as follows:

  1. Are You Working?
  2. Is Your Condition “Severe”
  3. Does Your Condition Meet a Listing?
  4. Can You Perform Your Past Relevant Work?
  5. Can You Perform Any Work

Hundreds of words have been written about each step of this process and the Appeals Council and District Courts produce voluminous written opinions that explain what each of these words mean and how they should be applied.
As a busy attorney dealing with disability cases on a day to day basis, I don't have the time or patience to deal with the minutia of Social Security jurisprudence.  Instead, I worry about what it takes to win.

With apologies to the drafters of Social Security's POMS – Programs Operation Manual System, it has been my experience that there are 3 ways to win a case:

  1. Meet a listing
  2. Prove that your functional capacity for work (i.e. Residual Functional Capacity) is less than sedentary
  3. Meet a grid rule

You can read more about how I apply these three "theories of disability" in a back case by clicking on the link.

In my experience about 15 of cases that end up at hearings are decided under a listing theory and about 15% are grid rule cases.  That leaves approximately 70% of the cases that I try as RFC cases.  Note that my percentages may be similar or different that what you might experience where you live.

In my view, Social Security disability practice fits fairly neatly into this three theory box.  I use this approach in every case in my office and I am always able to fit the facts of any particular case into one, two or all three of these arguments.

If you are a lawyer and you want to learn more about how I set up and manage my practice, I am teaching a course entitled "Creating a Social Security Disability Practice at Solo Practice University, an on-line learning resource.

0 thoughts on “Three Winning Arguments in Disability Cases”

  1. I have hypersomnia/narcolepsy and I am awake and functioning approx. 3 hrs a day before I need a nap. My hearing is 1 month from now and could use and tips you may have thanks.

    1. Kim, if you have a “symptom diary” detailing your episodes of napping throughout the day, that could be helpful evidence. More importantly you need documentation from a treating doctor confirming the frequency and duration of your uncontrollable sleeping.

  2. With vision problems that include past scleral buckle surgery, diagnosis with frequent ophthalmic migraines (short periods of blindness), migraines with aura, and a new evaluation of cataracts at age 53 I’m not sure if I’m up for the rigors of a social security claim. I’ll do it, but I’m still afraid to apply as my energy reserves are at an all time low. Do you have any insight on what is required with vision problems like mine? I’m willing to work, but don’t think I can do this without cataract surgery and rehabilitative services.

  3. I had my hearing on Dec 16 2010, for SSI benifits. At the hearing there was a vocational expert. It’s now April and I still haven’t gotten a judgement. My question is, why would a judge ask for a 2nd opnion from another vocational expert?

  4. Kim, I also have severe Narcolepsy with Cataplexy plus Fibromyalgia and RA, so I totally relate. I had my hearing a week ago, and I think it went well, but we shall see. My life is but a shell of what I wanted it to be. What a difference severe disability has on one’s life!

  5. hi i have finally had my hearing after about 4 yrs as i went in hearing room with my attorney there was judge court reporter and vocational expert the judge sworn me in ask my name date of birth and correct mailing address and phone number then he ask the vocational expert regarding what types of work i can do the vocational expert answered no to all judges questions saying i could not do any type of work period and that was it he the judge didnt ask me any thing else and the judge ask my attorney did he have any thing to say and my attorney said no i wasnt in the hearing room no longer than 5 minutes does this means the judge approve me

  6. I have diabetes 5 shots a day sciatica diabetic periphial neuropathy major depression fibro hypertension osteoarthritis and ptsd I’m waiting for a hearing will I be approved and I have to mention the side effects of taking 9 meds a day

  7. Hi, I was wondering if it would be possible to get SSI for having PMDD? I am a full time single mom of an almost 2 year old. I am all she has. I do not have a job other then being a mom, I can only be on a certain medication for the symptoms cause i am still nursing. It helps with the stress part cause it takes a lot out of me. I have just been diagnosed with PMDD but i can back it up to a few years ago and it explains my behavior! For one week out of every month i am curled up in stomach pains and i can barely relate to people socially and i am a very social person. It goes away when I have my period, i feel i cant work with this condition, it stresses me out. I can barely take care of my daughter and i during this week. it is so incredibly hard! do you think it would be possible to be able to get SSI until i get these blasted hormones under control? it could take years!

  8. Hi! My names is Ebony and i just found out that im bipolar w/ manic depressive and have degeneration disk diease in from L-1,S1 w/ slight bulging. I am only receiving SSI and SSA. The State said that is has only been since 2007. But, i have had all these problems from birth. The doctor that delivered me told my mom that things is my body would change as i got older and now i know that i have been biopolar since 1995. I started haveing the disk prolems after the birth of my only child. how can i get to prove that the disk problem was cause by the epidural. I feel it was not enough that the state wants to say that ive only been disabilied since 2007 which in fact it has been 2002. Please help w some advice.I found out in 2009 that i was bioplar and started meds and the serqoual doesnt work.

    1. @Ebby: To Ebby, ifyou could tell me about the damage done by getting the shot to or thru the edpdural process, iwould appreciate it. My poor suffering father in law (91) has been paying for “no treatment via drugs or whatever” because all docotrs so far wont touch him or tell him about his damage done thru them hitting something when he had an epidural. Both he and i had knee surgery replacement (mine was done at same time boht knees) (his was done once (1). However tho we both had same docotr for operation and epidural, he evidently got hurt. I myself am not medically sure if he did, but an mri shows there is NO ROOM TO PUT ANOTHER NEEDLE IN HIS BACK WHERE AN EPIDURAL WOULD BE GIVEN. HE HAS BEEN LIVING IN PAIN DAILY 24 HOURS ADAY AND THE DOCTORS IN DELAWARE ARE DEATHLY AFRAID OF PRESCRIPBIGN MEDICATION FOR HIS PAIN, AND THEY WON’T OPERATE, DUE TO HIS AGE (THEY SAY THIS IS REASON). any info you could send us I would truly appreciate. Part of his problem is because of his medication, never taking pain meds, whatever machine in chest is that controls blood pressure, he cannot take 99% of pain meds. So he is resticted from what will help him and unfortunately the pain meds he can take is highly congroverial. We can deal with that part, but any information you can send us as to how the damage was done thru bad epidural injection would be of great help and help a man, who will probably die soon anyway, due to this and other problems we are not aware of(hope not but). I dont want you to give away any personal info, but anything you can send that we can use to heolp him get help thru eithe relief of pain or whatever is needed. To further complicate issue, the family doctor wanted to give him fentinal (a very powerful new drug for pain that last for 3 days) and we looked it up on web md. warning “this is deadly for people over 60, do not use….so doctor recommends giving it to him? hard to understand it seems, but some thougths on why doctor would do this are questionable, but we feel since we have been in delaaare that if you are over 65 you are treateed as if they dont want you and will od whatever they have to to insure this. thank you so much and we wish you recovery of some type for your life. john De.

  9. I am bi-polar Manic Depression I went before an administrative law judge this past July 19 accompanied by my attorneys. Right know my case has been assigned to a write. what can i expect?

  10. I SUFFER FROMBI-POLAR MANIC DEPRESSIONAND I ALSO HAVE AN IMMUNE SYSTEM DISORDER. MY CASE WAS HEARD BEFORE AN ADMINISTRATIVE LAW JUDGE LAST JULY 19TH HERE IN MIAMI FLORIDA. IT LOOKS LIKE SHE HAS HER DECISION MADE UP,BUTIT HAS BEEN ASSIGNED TO A WRITER. WHAT AREMY CHANGES OF BEING AWARDED

  11. Hi- I have been waiting nearly 2 years for mt SSI to be approved. I have been through appeals and now waiting on the Appeals Council to review my claim. My injury is L5,S1 disc injury with s1 nerve damage initailly only on one side but this process has taken so long that my symptoms are bilateral with sciatic pain constantly shooting down both legs thus affecting my ability to ambulate normally. I kept appealing until it went to adjudication and the judge denied my claim because he said that according to my medical evidence, I did NOT consistently meet the listing to be deemed disabled and then sided with a medical expert via tele-conference… a docotor who never examined me and really only saw the back of me for 30 minutes. My lawyer is appealing on grounds that I do and have consistently met the listing AND that the judge gave too much weight to the medical experts opinion of my medical condition based on “no physical examination”. My question is this: I had another EMG done this year that proves consistent nerve damage bilaterally with the s1 nerve. I have given this evidence to my lawyer. Will the Appeals Council consider this new medical evidence, if it’s been included, on overturning the judge’s decision? We have lost everything (house, cars, savings) because SSA has been dragging it’s feet. If I could work, does SSA think I would have stood idly by while my family lost everything for a measly $1,300 per month? I could make way more as a nurse… but I can’t do that anymore! Geezzz! I understand that a lot of back pain claims are fraudulent but this is ridiculous. I am worse off now than when I was initially injured in 2007… I can take care of my children, my aging mother, or even my household and am tired of the remarks “Why can’t you just work?” Does anyone know what it is like to feel a thousand knives stabbing in the back of your legs everytime you move? That’s the kind of judge that should review this case.

    Do I have a chance of winning this? Thanks.

  12. Hi Mr Ginsberg! I am about to buy your book. I also am about to quit work due to my illnesses. I have been written up and counseled for chronic absence ( violating ADA as far as I’ve read). Ok looking at your reference of listings I have several severe hearing loss, COPD, diabetes and musculoskeletal I have documented evidence of all of these. I see the physician every two months (required policy) have had all the tests required etc. How winning is my case going to be? (Haven’t started the process yet). And can my boss deny me the right to see my doctor? He has. I live in Arkansas. Thanx

  13. I RETIRED AT 62 I WAS DIAGNOISED WITH A BONE DISEASE I DID NOT APPLY FOR DISABILITY I AM 65 I WANT TO GO BACK TO WORK AND ACCORDING TO MY DOCTOR THE ANGLO SPONDOLITIS HAS GOTTEN WORSE I RECIEVES REGULAR SOCIAL SECURITY CAN I GO BACK AND APPLY FOR DISABILITY I WANTED TO WORK PART TIME HOWEVER THE NUMBNESS IN THE HANDS AND ARM AND PAIN WILL NOT ALLOW ME TO EVEN TRY TO GO BACK TO WORKS

  14. I HAVE BEEN VERY UPSET ABOUT THIS. A CLOSE FRIEND OF MINE HAS BEEN DENIED DISABILITY. IF YOU APPLY FOR DISABILITY BASED ON HEART FAILURE CONDITIONS, INTENSE SWELLING IN FEET AND LEGS, CAN’T HARDLY BREATH BECAUSE OF SO MUCH FLUID BUILD-UP, THEN YOU HAVE A STROKE, LOSE PARTIAL VISION IN ONE EYE, CAN’T SPEAK OR THINK CLEARLY, CAN’T AFFORD TO GO TO THE DOCTOR FOR NEITHER CONDITION, FINALLY GOT PUT IN THE HOSPITAL UNDER INDIGENT CARE FOR THE STROKE FOR A WEEK THEN RELEASED WITH NO DOCTOR OR MEANS BY WHICH TO PAY FOR A DOCTOR FOLLOW-UP; HOW CAN YOU BE SENT TO A FREAKING PSYCIATRIST FIRST THEN NO THOUGHT AT ALL ABOUT A REAL MEDICAL PHYSICIAN? AND THEN DENIED BENEFITS WITH THE STATEMENT THAT HE COULD PERFORM HIS FORMER JOB FUNCTIONS AS AN ARTIST. HE CAN’T SIT OR STAND WITHOUT HAVING TO PROP HIS FEET FOR EVEN 5 MINUTES OR THERE IS SUCH SEVERE SWELLING THAT IT LOOKS LIKE ITS GOING TO BUST, HE CAN’T THINK CLEARLY, HAS NOT BEEN ABLE TO HAVE ANY REHABILITATION WITHOUT MEDICAL INSURANCE OR MONEY TO PAY FOR MEDICAL COSTS, HE STUDDERS WORDS AND FORGETS WHAT HE’S SAYING CONSTANTLY, HE CAN’T SEE CLEAR OUT OF ONE OF HIS EYES AND ALL BUT THE SWELLING SYMPTOMS HAS BEEN SINCE HIS CONFIRMED STROKE THAT WAS ALSO REPORTED TO DISABILITY BEFORE THEY MADE THEIR DECISION. THESE ARE DEFINITELY LIFE THREATENING CONDITIONS; ARE THEY JUST GOING TO LET PEOPLE LIKE HIM DIE? ANXIETY IS NOT EVEN 99% AS CLOSE TO LIFE THREATENING AS THESE CONDITIONS AND SOMEONE CAN GET APPROVED FOR ANXIETY QUICKER THAN SOMEONE THAT IS BASICALLY GOING TO DIE WITHOUT PROPER MEDICAL TREATMENT AND PROPER MEDICATIONS. PEOPLE GET ADDICTED TO MEDICINE FOR ANXIETY, THE FREAKING GOVERNMENT PAYS FOR MEDICAL COVERAGE, FREE CHECKS, FREE MEDICINES FOR ANXIETY THEN THEIR PAYING FOR REPETATIVE REHAB VISITS FOR ADDICTION TO THESE FREAKING MEDICINES. I JUST WONDER WHY AMERICA IS IN SUCH DEBT? I DON’T SEE HEART PATIENTS AND STROKE VICTIMS MEDICAL ATTENTION OR MEDICINE CAUSING ALL THESE PROBLEMS.

  15. Dear Mr. Ginsburg,

    Thankyou for a great blog. I have read about the three boxes that your cases fall into. My court date is this Fri. No lawyer will represent me because “going back in time is hard” They have all told me that I can more than prove I am disabled now…..but my credits expired in 2006. I didn’t apply because I kept thinking I was going to get better or find a better doctor. Do you have any advice on how to win? Or any tips at all. (I have sleep apnea, migraines, fibromyalgia, chronic fatigue, thyroid hormone resistence, hypothyroidism, allergies, celiac, iron deficency anemia, other hormone & vitamin deficinceys TMJ etc!) I am currently trying to get doctor records from 2004-2006 with my complaints/symptoms from then. I am terrified that things are going to get worse & my health bills are getting higher all the time. It’s hard to take care of my 7 year old who has ODD, ADHD, & sleep apnea. I really have to win this. Any advice at all is much appreciated.

  16. My disability has now gone before a judge. SSID requested to review
    the case again and maybe avoid the hearing. Is there a general time line of how long this can take?

    1. yeh, I thought with the diagnosis I had and if all the paperwork got to the judge in time she could rule without a hearing, yeh right. I have a good law firm, I have PTSD, bi-polar, depression, anxiety, social phobia, personality disorders and OCD but got a denial with the law judge. The switched me to a man 10 days before the hearing, I don’t feel he was prepared and after I got the denial, the paperwork said my conditions were SEVERE and that is the judge’s opinion, yet I got denied. I have only one chance left and I am scared. I can’t take this much longer, I can’t work, would like to work and can’t live at home with my mother at age 37 much longer, where do I go, what type of job could I remotely do and survive on minimum wage and 20 hours a week. I only know fast food and hate to work with the public, co-workers and being closely supervised by my bosses. Good luck

  17. I had my hearing but don’t k ow how it went. I am a 31 yr of vet. I suffer TBI, mild disk desiccation, plantar fasciitis, pressure on my brain, major depressive disorder, severe PTSD, and ringing in the ears. I have 5 children. I worked for one year while waiting on my decision working less hours as time went on making about $1200 a month max. I have been hospitalized twice in three months for my PTSD and depression. I also receive 70% disability from VA for my PTSD and ringing in the ears. What are my chances of being approved?

  18. Hello,

    You have some great information. I have recently just applied for SSI due to Antiphospholipid Syndrome, Artheosclerosis, Pernicious Anemia, Raynaud’s and Severe Degenerative Spinal issues. I was wondering if you have represented had anyone with Antiphospholipid Syndrome? or, if you have any inclination how SSA looks at APS?

    Thanks for your thoughts.

    1. Beverly, I have not represented any client with APS, although I have represented several clients with DVT and other vascular diseases. You can look at the 4.12 listing and possible argue that your APS is equivalent to the listing, or you could argue that your functional capacity to work has been so impaired by your need to keep your legs raised above heart level that you would not be able to function at any competitive job.

  19. I’m curious to know if the listing argument goes across the board regardless of work history. I myself was granted SSDI without any difficulty because I was beyond the listing requirements. Though perhaps the fact my employment was dismissed from a Independent Living Center helped. Since then I’ve earned enough education to enter the workforce in a field where my disability does not impede working.
    My brother on the other hand, was denied disability. He did not appeal at the time. Now he does have a job but his disability far exceeds the listing requirement. However, this job does not allow him to afford any kind of medical care and he has other medical needs cropping up that need to be addressed and could be if he were receiving Medicare. Obviously if he were granted SSDI then he would have medical coverage.
    Do you have any experience (positive or negative) with individuals who are working being able to qualify based on listing requirements?

    1. Laura, my experience has been that if a person is working, SSA will not accept an application for disability. The only exceptions I have seen are when someone is working in a structured work setting such as the Salvation Army. Social Security uses a 5 step sequential evaluation process – the first question is “are you working” – if so, they usually do not proceed to the next step. Has your brother tried to apply? What did SSA say when they found out that he was working full time?

  20. I applied for state disability while my Doctor ordered MRI. After my waiting period of 7 days I received 2 days pay from the state now the Dr.says after reading the MRI says I am totaly disabled.And doesnt want to sign state disability form to continue getting sdi told me to file for ssdi. Am I not entiled to the state disability since I am still disabled and I have a claim .Shoulnt I be able to use up the money in my state fund first…

  21. i received an unfavorable decision from the alj. my lawyers are appealing my case to the appeals council. what are my chances at winning at this stage?

  22. I just returned from my appeals hearing where the vocational expert stated that there was no job I could hold. My question is does this increase the chances of winning my case or will the judge find another way to deny my claim

  23. I was wondering if you ever had any cases involving severe acute asthma, your opinion on them, and any helpful tips you might have without taking up to much of your time. I go to court on Dec. 6th and will be representing myself. Thank you. 

  24. i filed a ftca based on neglect, omissions, cruelty by ss employees & staff. plus, the staff & employees mislead me concerning so many rules, regulations, policies that its criminial.  i filed a case in indianas federal district court only to have them "dismiss it for failure to state a claim"  i need some definate authorities & info to be in successful at the 7th circuit ct of appeals, level.  when i submit my case this month.  and suggestions?    (and i went thru all the appeal processess years ago)

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