At step 3 of the sequential process, Social Security must determine your "residual functional capacity," or RFC, they call it. This is basically the maximum you can do in terms of work-related activities--such as sitting, standing, bending, lifting, reaching, etc. For mental impairments, it judges ability to concentrate, remember, understand and follow simple instructions, etc. The judge will normally use one of two methods to determine your RFC:
1. He/she may plow through your medical records and simply make up an RFC, which is rather arbitrary. This is scary and unless the claimant has a devastating health condition, often leads to a denial. Bad idea
2. The judge may look back at the RFC used by the state agency that originally denied your claim and use the same RFC at the hearing. Since this RFC got your claim denied in the first place, it will get you denied again at the hearing. Also a bad idea.
So, what's the alternative? The better idea is for you or your attorney/advocate to give the judge a valid residual functional capacity, so he/she does not rely on either 1 or 2 above. In other words, provide your own RFC.
How do you get this residual functional capacity? It has to come from one of your treating doctors. The form I use is called a "Medical Source Statement" or MSS for short. The MSS form should be customized to fit the claimant's particular impairments. For example, if the impairment is fibromyalgia, the MSS form should be tailored to that particular ailment. If the impairment is mental--such as depression or PTSD, there is another form for that. I often customize my own forms to fit the claimant's particular symptoms, such as pain, fatigue, lack of concentration, poor memory, etc.
IMPORTANT: Social Security will not ask for or obtain this form from your doctor. An RFC is not part of the doctor's routine medical records. It's up to each claimant or attorney to provide this form to the doctor, ask for it to be completed, then submit to Social Security before the hearing takes place.
The use of a properly completed and appropriately customized RFC/MSS form can make a vast difference in the outcome of a Social Security disability case at hearing. In fact, it may be the key piece of evidence and may be given "controlling weight" in the judge's decision.
CAUTION: Do not make the following mistakes in regard to the RFC/MSS form:
A) Do not assume Social Security will have this done, or that the Social Security doctor who examined you will fill out this form. Even if he does (very unlikely), it will not help you--guaranteed. It needs to come from YOUR doctor.
B) Never assume that the RFC is part of your doctor's routine medical records. It never is.
C) Do not get the RFC/MSS form completed by a nurse practitioner (CRNP), chiropractor, therapist, counselor or anyone besides a licensed Medical Doctor (MD or DO), or a licensed psychologist (Ph.D. or Psy.D) for mental issues. If you have a vision impairment, a licensed optometrist can complete the form--but only with regard to vision problems. Not all medical professionals are considered "acceptable medical sources" by Social Security. Doctors (MD or DO) are acceptable. So are licensed psychologists (Ph.D. or Psy.D)--but NOT therapists, counselors, social workers, nurse practitioners, chiropractors, etc.
Summarizing. The following professionals may sign your RFC/MSS form:
- Doctor of Medicine (MD) or Doctor of Osteopathy (DO). This includes psychiatrists, who hold MD degrees.
- Licensed psychologist holding either the Ph.D. or Psy.D (doctorate) degree and properly licensed by the state.
- Licensed optometrist for vision problems only.
I try to never go to court without a supporting medical source statement form the doctor. I find that most of my winning cases include a treating doctor's RFC.
Here are basic guidelines that may give you an idea if you can qualify?
- Are you now off work because of a severe impairment? (If still working at substantial gainful activity, you will not be approved).*
- Have you been unable to work for at least 12 consecutive months, or do you expect to be unable to work for at least 12 months? (Short term disability is not covered by SSDI).
- Have you worked at least 5 years out of the most recent 10-year period? Most people need at least 40 quarters of covered work to be eligible. Exceptions apply to very young workers who aren't old enough to meet this rule.
- Is there objective medical evidence of a severe physical and/or mental impairment? In other words, can we get medical records from doctors, hospitals or other healthcare providers to document your medical condition(s)? Objective evidence is a must for a successful claim.
If you answered YES to all these questions, you may have a solid disability claim. Beware that up to 80 percent of claims are initially denied and require an appeal to win. Don't give up if you get denied. Many of the denials are actually wrong and can be overturned on appeal. We tell our clients to expect an appeal: it's part of the process, the rule, not the exception.
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* In 2018, substantial gainful activity refers to work in which a person earns at least $1,180 per month before tax. This amount changes slightly from year to year. It refers only to income derived from work, including self-employment income.
Psychological or mental disorders certainly affect an individual's ability to work. A great many disability claims boil down to a person's ability to consistently perform the mental tasks of work. So, Social Security does pay for severe psychological impairments--such as depression, PTSD, panic disorders, schizophrenia, anxiety, etc.
DOCUMENTATION. My experience tells me that mental impairments need special documentation and evidence. First, there needs to be a history of treatment by a mental health professional, either a psychiatrist or licensed clinical psychologist. (Nurse practitioners are not helpful with Social Security claims). Second, the patient must be compliant with recommended treatment. Third, the doctor needs to provide a statement detailing how the patient is restricted in the ability to perform specific work-related activities.
Problems that often arise with this type of claim:
- There hasn't been enough work history, or not enough recent work, for the required quarters of coverage. The claimant is "not insured" by Social Security.
- The claimant has little or no medical treatment for mental disorders.
- The claimant has had some medical treatment but is not non-compliant (refuses or neglects to make medications, does not follow up with doctors appointments, etc.).
- There has been some medical treatment but not by a mental health professional--often a nurse practitioner has been used, which Social Security does not recognize as an 'acceptable medical source.' Even family practice doctors don't get the same weight as a psychiatrist or licensed psychologist.
- A history of drug or alcohol abuse can hurt any claim, especially one based on mental health issues.
It isn't enough for the claimant to tell the judge that he is depressed, despondent, nervous or has panic attacks. There must be medical evidence of severe, ongoing and chronic problems that would convince a judge that the claimant cannot work.
All this having been said, many of our clients do get approved for disability based on mental disorders. Before we move forward with a case, we evaluate the available evidence and try to get more evidence when appropriate.
Social Security is now trying to schedule hearings by video-teleconference (VTC) instead of in-person. What's the diffference and do you really want a hearing by VTC?
Hearings, of course, are held when Social Security denies a claim and the decision is appealed. It goes before an administrative law judge (ALJ) for a new decision and resolution. The hearing is the only time the claimant meets face-to-face with a decision maker.
Claimants are entitled to meet face-to-face with a judge. However, there are rules that must be met to exercise this right. If an in-person hearing is not properly requested, a VTC hearing may be scheduled by default.
How to opt out of a video teleconference? Shortly after your appeal is filed, Social Security will send you a packet of information and forms. One of the forms involves a notice of intent to schedule a hearing by VTC. The claimant must opt out by checking the proper box on this form, signing it and returning it to Social Security within the deadline. Once that is done, an in-person hearing will be scheduled.
Why do some claimants and their attorneys object to hearings by video teleconference? A few reasons:
1) Some people simply prefer to be in the same room with the judge for a hearing.
2) Sometimes, there can be audio problems with the VTC format. I was recently at a hearing where I could barely hear the judge. I've been at other hearings where the vocational witness could not be heard. These potential technical problems are eliminated with in-person hearings.
3) There may be more uncertainty about who the judge will be with a VTC. While you cannot pick the judge, nor predict who it will be, at least with a live hearing you will get a judge from the local hearing office. But with a VTC, a judge can be from Baltimore, Philadelphia, Atlanta or St. Louis--or anywhere.
Aside from these factors, a video hearing is conducted just like an in-person hearing. The procedure is the same. So, is there any advantage to having a hearing by VTC? The only one I can think of is indefinite. A VTC may (emphasize may) be scheduled a little sooner than an in-person hearing, just because it is more flexible and accomodates the judge's schedule.
I think each claimant should have a discussion with his or her representative before making a decision on a video teleconference. If either the claimant or representative has a strong preference or objection, I think that should determine the matter.
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Charles W. Forsythe
The Forsythe Firm
7027 Old Madison Pike - Suite 108
Huntsville, AL 35806
PH (256) 799-0297
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