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What "Theories of Disability" Work to Win Cases?

Posted Jul 23 2009 10:24pm

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. 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.

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.

Post from: Social Security Disability Blog

What "Theories of Disability" Work to Win Cases?

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