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:
- Are You Working?
- Is Your Condition “Severe”
- Does Your Condition Meet a Listing?
- Can You Perform Your Past Relevant Work?
- 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. 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:
- Meet a listing
- Prove that your functional capacity for work (i.e. Residual Functional Capacity) is less than sedentary
- 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.
For this reason, it was a little troublesome when I received the following email from one of my readers:
I have a lawyer handling my disability case. My problem is that she doesnt seem to know some of the disability language. For instance she didn’t know what a RFC form was. She wanted to know where I get this language from.I told her that i research disability on the internet andthats where I get a lot of information. She said there is no such thing and that my doctor will make a narrative report on me. Is there any such thing as an RFC form or is the language different now?
My answer to the reader is “no, Social Security has not changed its language.” An RFC form is a checklist that Social Security personnel use to evaluate a claimant’s RFC. Here is a copy of the RFC form that Social Security uses internally. In my practice I edit this form to include a number of additional questions that I know will help me win my case. You can find a copy of my practice form along with suggested responses in my book, the Disability Answer Guide.
Now, a narrative report will work but I think that an functional capacity form is a superior instrument in that it conforms to Social Security’s internal procedures and “speaks SSA’s language.” Narrative reports – in which a doctor writes a letter that identifies specific limitations and diagnoses – is a document more often seen in personal injury or workers’ compensation cases.
I would like to give my reader’s attorney the benefit of the doubt – perhaps she is familiar with Form 4734 and doesn’t call it an “RFC form.” I would suggest, however, that any claimant or attorney not familiar with the term “RFC” may want to take a few minutes to learn about this concept since it is frequently the basis of Social Security hearing decisions.
A brief, shameless plug: I am teaching a course about building a Social Security disability practice at Solo Practice University. If you are a lawyer looking to add Social Security or one of a number of specialties to your law practice I would strongly suggest that you take a look at the SPU web site and consider enrolling.
I basically agree with your three theories but the RFC could be less than sedentary and the claimant is still denied. After all, there are, if memory serves me correctly, jobs that are classified as unskilled and less than sedentary which means the person has to sit 8 out 8 hrs with normal breaks.
On those clients I represent who do not meet a listing, can not meet the grid rules for being found disabled, then I need to show their RFC is such that they may have marked impairments when interacting with supervisors, coworkers, and the general public. Then I try to find marked impairments in their ability to remember, understand, and carry out simple instructions. in their ability to adapt to routine changes in the work setting; in their ability to make simple work related decisions. Any of these will result in an approval. Additionally, clients who miss 3 or more work days per month on an unscheduled basis because of disability also qualify. So I respectfully submit their are additional theories to approach with. I have not added that clients who have significantly limited handling and fingering are also found eligible because every job requires some degree of manipulation.
Gerald makes several good points. The RFC argument is more expansive than what I listed in the blog post, however, for sake of brevity and identifying the most common use of an RFC argument, I left it at “less than sedentary.” Perhaps a more accurate wording would be “prove that your functional capacity for work has been so eroded by mental or physical problems that that you would not be able to perform even simple, unskilled work.”
i am a 31 yr old man that is hiv+ of 5 years now i have a herniated disc l5s1 the is deteriating and getting worse daily i also have thrombocynopenia ( low plateletes) for over 5 months now i have daily diahrea that is there i was just hospitalizes for 2 days cus i got some bug that i was vomiting and diahrea for 12 hrs plus and was very weak i am fatigued daily i can no longer walk and do things as i use to do to the disc my right leg is losing strenght in it i have a walker and or a cane to get around is this grounds that i can get my ssi ssdi or ssa
SEVERE arthritis facet joints lumbar…DDD…effusions around dessicated discs in lumbar spine, severe pain since 2007…depression
anxiety disorder…substance abuse issues but sober and clean for 3 years..goy fired from RN job 2008 feb. due to fell asleep at med cart..cannot take narcotics but take gabapentin maximum dose daily and 40 mg prozac…all well documented..mri evidence on file…plenty od MD visits on file documenting the pain and the injections i have had in my back
SS had a CE done and it was found i could only do SRRTs mentally…but classifed me as medium unskilled now that i am no longer able to do former job as nurse am awaiting alj haering…what should i do?
PS i am in wilmington nc
ss disability sent my file from Charrleston SC to Atlanta Ga which i undersatnd is a slower office
First, I was wondering when you say 3 ways to win if are saying you use that one way to win and not using all 3.
Next, I am from Alabama and have had seizures since I was an infant. I am now 28. I received treatment throughout my childhood and had a few seizures a year. They where Complex partial seizures where I would walk around acting dumb for a couple of minutes. No medicines ever worked completely and no eeg tests every showed any abnormal activity but the doctors said most don’t. When I graduated from HS I came off my parents insurance and could in no way afford to go to the neurologist I was going to. So I stopped receiving treatment. Now about 6 years ago I started feeling weird for 20 minute or so periods of time during the days. I felt like I do when I was going to have a seizure but it was very weak and came and went. During the periods I started experiancing occasional brust or rush just like when a seizure starts but it would get any worse. Some would get worse and I would blackout and alot would get worse to where I was real dazed and out of it but I would not blackout. With this I started blacking out all the time and started having panic attacks over it which would start with panic but would cause me to go into a seizure. I started a job right when things started changing and got fired in less than 2 weeks for having a seizure. They sent me home and didn’t fire me but a week later mailed me a termination letter saying I was fired for “Violation of Company Policy: Failure to disclose medical history @ pre emp Physical.” With my last check I went to my old family doctor and told him about the changes and he put me on anxiety meds which did nothing but make me tired.
Since I kept having seizures every week I filed for ssi. I was denied because I had few records still on file because they only hold for 5 years. I had 3 eeg tests that were noted “like normal” and that was it for my childhood treatments. I was denied and appealed with an attorney who told me to start keep seizure logs and go to the doctor and start seizure treatment. Well I had no money to go to the doctor and couldn’t find a clinic to go to. So I received no treatment and the hearing Judge said I was not disabled and then I couldn’t reappeal so that was the end of it.
I went to work at a brick company where a friend worked. I had a seizure a few days after starting but he talked them into keeping me. I worked there about 2 months where I blacked out 12 times, 1 of which I went into convulsions, and had countless “Simple Partial Seizures” where I would get real dazed but wouldn’t blackout. I would be out of it and slugglish and would get backed up. They let me go by saying they couldn’t have me blacking out and roaming around in the shop and slowing production down.
So I refiled and was denied. I now have a new lawyer and my hearing is coming up in 2 months. My condition has not changed. I have learned the episodes where I don’t black out but get real out of it are also seizures and have started logging them too. I have about 70 blackout seizures a year, 3 convulsion seizures, and about 3 to 5 dazed seizures a week. I finally got accepted into a clinic in Jan 2010 and have been on seizure meds since. My levels are in good range but my seizures continue with only a few second drop in duration of blackouts. I had a convulsion seizure in Aug and went to the ER.
I was wondering with the termination letter firing me for my condition, EEGs showing I was being treated when younger, fact I am receiving treatment and am taking it, the ER report, my seizure journal, and witnesses who see me having them all the time. What are my chances and what else would help? Also how does a RFC form work for seizures since the symptoms come and go? Durning a seizure I would be limited in every way.
When you say 3 ways to wins, do mean win using one of the 3 or all 3 combined? I am a 28 year old male in Alabama. I have had complex partial seizures since a child and all kinds of treatment while I was growing up. I went from having them a few times a year to a few times a month. I have 3 to 5 simple partial seizures a week. I have been fired from the only 2 jobs I have had in the past 6 years since it got worse. The last one I work maintaining rail carts at a brick yard. I worked there for 2 months and blackout 12 times in that period and had countless ones where I wouldn’t blackout but got real dazed and would bog down production. I had one where I went into convulsion. They only kept me on because a friend of mine was well liked there but finally told me they couldn’t have me roaming around the shop with forklifts and all the other problems. The first job I last about a week and a half and was sent home after having one. I received a termination letter stating i was being terminated for “Violation of Company Policy: Failure to Disclose medical history @ pre- emp Physical”.
The only records from when I was young they still had was 3 EEGs that had done by a neurologist when I was Senior in HS and they were noted “likely normal” but should prove long time seizures.I have been on seizure meds since Jan 2010. My level are within normal range. I have kept a log of seizures since 2006 but just started logging the Simple Partial ones. I have a ER report where I went for going into convulsion in Aug 2009 where they did a CAT scan. And I have the Termination letter.
What is the best way to handle a seizure case? With this what do you think my chances are? Note: I have filed once and appealed with lawyer but denied because on treatment. I have now refiled and was denied and appealed. I now am getting treatment which isn’t controlling them and I have a lawyer and a hearing coming up in 2 months.
My husband and I have been separated for years but we are still married and have 3 children in which they live with me he is trying to get ssid will me and my kids or at least my kids be able to draw a check off him and is there anyway the kids check will go directly to him or will they come directly to my kids thanks
If your children are minors, they would be eligible for auxiliary benefits. Generally, SSA will ask for the address of the minor children but they will ask your husband. So, I would suggest that you communicate with your husband regarding the appropriate address for the checks. You may also want to discuss with your family law lawyer to make sure that these checks are not misdirected.
I have been going to several doctors for my condition of di-polar & add. I have been with my lawyer nearly 3 years now, I have been turned down once and now i have a hearing in 2 months at the courthouse.My disibility has kept me from working around 2011 and none of the lawyers that i’ve been to dosent fill out RFC or fill out forms or notes. i’m 31 yrs old. DO I STILL HAVE A CHANCE ??? Please help me. Should i bring my Lithum with me ? or all my pills to court ? Please help thanks . . . .