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SSI & SSDI FAQs »

Physicians’ MDFAQs

  1. How does it financially benefit a Physician to assist the disabled?
  2. I thought Social Security had their own doctors who determine disability; is that correct?
  3. Am I, the Patient’s treating physician qualified to complete a Residual Functional Capacity form for my patient? Don’t I need to send the patient out for a Functional Capacity Evaluation?
  4. When does the patient’s eligibility for Medicaid or Medicare benefits start?
  5. How can I learn more about Social Security Disability and issues involving payment for patient services under Medicare and Medicaid.
  6. If a patient is in dire need of a transplant or in danger of losing his or her life without medical care and treatment, how would such a case be handled if that person was not already on Medicare?
  7. If I a Disability Claimant is a Veteran who has applied for Social Security Disability or SSI Benefits, must my VA Doctor assist that claimant in completing paperwork helpful to my Social Security Disability or SSI case?
  8. What is The General Analytical Framework for considering a Social Security Disability claim?
  9. Is “Disability” a medical determination?
  10. If disability is not per se a medical determination what issues will the court consider in a Social Security Disability case to decide if a person is disabled or not?
  11. If a physician writes that a claimant was unable to work full time at any employment from a date certain how is that relevant to his or her claim?
  12. If “disability” is not a medical determination, but an administrative one, what law will apply in a Social Security Disability case?
  13. What happens at step 1 of the sequential evaluation process?
  14. What happens at step 2 in the sequential evaluation process?
  15. What happens at step 3 in the sequential evaluation process; is a medical opinion relevant here?
  16. Must an ALJ consider anything before continuing onto step 4 in the sequential evaluation process?
  17. What is Residual Functional Capacity?
  18. How is RFC determined; is this where a physician can be of any aid?
  19. What happens at step 4 of the sequential evaluation process?
  20. What is Past Relevant Work?
  21. What happens at step 5 of the sequential evaluation process?
  22. Why the National economy?
  23. What generally does the court consider in evaluating a case?
  24. What about earnings subsequent to the filing of a disability claim?
  25. What is an “Extended Period of Earnings”?
  26. Will the judge consider a claimant’s mental or psychiatric condition in determining if I am disabled or not?
  27. Will the judge consider whether a claimant meets a Medical listing?
  28. Besides a Medical Listing, is there some other way for a claimant to get disability benefits?
  29. If the judge does not find that a claimant meets a Medical, Vocational or Social Security Rule listing, can a claimant still be found disabled?
  30. What about a claimant’s work background, what will the judge consider?
  31. What about a claimant’s past and present medical care and treatment, does the judge have to consider that?
  32. Does it matter that a claimant cannot afford medical treatment because he or she is poor?
  33. Does the judge have to take into consideration a claimant’s residual functional capacity, physical, postural and exertional limitations at the hearing?
  34. Does stress matter in a claimant’s disability case?
  35. What about what a claimant can or cannot do in a competitive work situation?
  36. Will the judge consider a claimant’s reasonably imposed lifting restrictions and why?
  37. What if a claimant has good days and bad days, does that come into play in a Social Security disability case?
  38. As a physician, I treat patients. Don’t these RFCs have to be completed by a Social Security Doctor, or as a consequence of “Functional Capacity Evaluations” done at testing facilities?
  39. What about non-exertional limitations, like mental impairments, are they considered in a disability case?
  40. What good can a psychologist or psychiatrist or even a general or family practitioner who prescribes me anti-anxiety or anti-depression medications be in proving a disability case?
  41. Will the judge consider a claimant’s ability to do work-related activities on a day-to-day basis in a regular work setting?
  42. What sort of things must a physician, psychologist or psychiatrist find or will they look for in determining a claimant’s aptitude and ability to do Unskilled Work?
  43. What about a Claimant’s mental abilities and aptitudes needed to do Semiskilled and Skilled Work, what is considered by the judge or medical expert?
  44. What about a Claimant’s ability to do other types of jobs?
  45. What about a “Mental Impairment Analysis”? What is it and what does a judge look for?
  46. What are “C” Criteria listings?
  47. What are “GAF SCORES” and why are they relevant to a finding of a disability based on psychiatric grounds?
  48. If a claimant is psychologically disabled, will he or she be allowed to manage his or her own money?
  49. Do a claimant’s subjective complaints of pain have to agree with test results or clinical findings by a physician to be relevant?
  50. Based on the elements of record and the claimant’s statements of record and in light of the objectively documented physical and medical findings within the record if the Claimant does not have the residual functional capacity to perform a full range of even sedentary work or is generally unable to sustain or maintain an eight hour workday or a forty hour work week or its equivalent on a regular and consistent basis is he or she disabled?
  51. Based on the Claimant’s age, education, transferable job skills or lack thereof and based on the Claimant’s Residual physical and Mental Residual Functional Capacity, and where the Claimant is significantly unable to engage in substantial gainful activity or sustained full time employment is such a person disabled?
  52. If a claimant does have an impairment or combination of impairments that meets or medically equals one of the listed impairment(s) in 20 CFR 404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)) is he or she disabled?
  53. If the severity of the claimant’s (mental) affective disorder impairment meets the criteria of listing section 12.04 et seq., of 20 CFR Part 404, Subpart p, Appendix (20 CFR 404.1520(d) and 404.1525) is that claimant disabled?
  54. If, after careful consideration of the record, the judge finds that a Claimant’s limitations so markedly restricted the Claimant’s ability to perform even sedentary work, as defined by the regulations and result in such an erosion of the occupational base for which the Claimant would otherwise qualify that there are no jobs available in the national economy which the Claimant could perform is the claimant disabled?
  55. If, after careful consideration of the record, the judge finds that a claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with lifting no more that 10 pounds occasionally and can stand/walk no more than 2 hours in an eight hour day. And sit for less than two hours of an eight hour day, would that person be disabled?
  56. If after careful consideration of the record, the judge finds that the Claimant does not have the residual physical capacity for a full range of light work and the Claimant’s residual functional capacity for sedentary work is markedly reduced by the Claimant’s limitations would that person be disabled?
  57. In making his or her decision, is there any form of analytical process the judge must use in determining whether or not the claimant may be entitled to benefits?
  58. If a claimant’s acquired job skills do not transfer to other occupations within the residual functional capacity as defined in (20 CFR 404.1568 and 416.966) and the claimant does not have transferable job skills that would enable the claimant to return to either regular full time employment or substantial gainful activity is that claimant disabled?
  59. If considering the claimant’s age, education, work experience, transferable job skills and lack thereof, if there are no jobs that exist in significant numbers in the national economy that the Claimant can perform (20 C.F.R. 404.1560(c), 404.1566, 416.9608, and 416.966) is he or she considered disabled?
  60. What if there may be some job out there like Wal-Mart Greeter that my patient may be able to do, is he or she not disabled?
  61. Must an ALJ elicit testimony from a vocational expert (VE) if it is found that a claimant cannot go back to my past relevant work?
  62. What if a claimant is absent excessively or suffer from incontinence due to his or her condition, will that be considered as part of the Social Security Disability case?
  63. Does a claimant’s pain really matter in a disability case?
  64. Must a judge sufficiently articulate the reasons for assigning treating physicians opinions little or no weight and relying instead on parts of the opinion of a non-examining medical consultant that had not examined the claimant or considered the record as a whole?
  65. Will a claimant’s own physician’s opinions that are consistent with the claimant’s treatment record be given controlling weight in his or her disability case?
  66. Must an ALJ develop a full and fair record and take into account the claimant’s medical history, absenteeism and pain in assessing a claimant’s residual functional capacity?
  67. Must an ALJ consider ALL of a claimant’s limitations?
  68. Must an ALJ consider or address the side effects of a claimant’s medications on his or her employability?
  69. What if the ALJ fails to consider the claimant’s need for medical care and treatment that will occur on a regular basis, or the absences he or she will probably have for this medical care or just being too sick to work a few days or more per month due to sickness?
  70. What is the claimant’s burden to prove in his or her disability case?
  71. Once a claimant meets the burden, does the burden shift to the government and how does the SSA go about showing that a claimant is not disabled?
  72. What if a claimant’s pain or depression prevents a claimant from concentrating on simple one or two step tasks throughout the day, is that something the ALJ has to consider if a claimant testifies about it or his or her doctors have written about this and those reports are in the record?
  73. If a claimant suffers from Obesity and it is not his or her primary disabling condition, must the ALJ consider the effects of obesity on residual physical capacity in determining if the claimant is disabled or not?
  74. What if a claimant has fibromyalgia; what must a judge or physician find if he or she is to be eligible for SSI or Disability benefits?
  75. What is the American College of Rheumatology’s definition of Fibromyalgia?
  76. Are “environmental restrictions” important to a disability case?
  77. What if a claimant has Crohn’s Disease, IBS, Colitis? What are the legal or medical considerations that a treating physician should document?
  78. Can a minor be considered disabled?
  79. Are a disabled child’s SSI benefits payable prior to the date his or her application is filed?
  80. Under what authority can an ALJ find a child disabled?
  81. What are the steps of analyses involved in determining whether a child is disabled?
  82. What is step two in determining whether a child is disabled?
  83. What does step three entail?
  84. What must the ALJ consider?
  85. What is the purpose of determining the “Six Domains” and functionally equaling a listing?
  86. What does an ALJ have to do to make this assessment?
  87. What else does an ALJ have to consider?
  88. What do you mean by a child’s “marked” limitation?
  89. What is an “extreme” limitation?
  90. What must an ALJ do to determine the degree of limitations in each of the “Six Functional Domains”?
  91. How does an ALJ evaluate a child claimant’s symptoms?
  92. What is the first of the six “Functional Domains”?
  93. What is the second of the six “Functional Domains”?
  94. What is the third of the six “unctional Domains”?
  95. What is the fourth of the six “Functional Domains”?
  96. What is the fifth of the six “Functional Domains”?
  97. What is the last of the six “Functional Domains”?
  98. If a child has only one “marked” limitation and no “severe” ones, can she be found to be disabled?
  99. When does a claimant become eligible for Medicaid or Medicare if he or she is disabled?
  100. In Florida, If a person is disabled and a Medicare recipient, can a physician legally charge him or her more than Medicare will allow?
  101. So, if a disabled person is in an accident , what should the physician do?
  102. Does Florida law define me as a Medicare recipient?
  103. If a Medicare recipient becomes an injured party, and is a Medicare Beneficiary, who is liable for damages including the amounts that treating physicians charged under contract/letters of protection?
  104. How can a physician go about legally charging more than Medicare will pay?
  105. So, how would this work out in an accident case involving A Medicare beneficiary?
  106. How do courts limit these recoveries from physicians in Florida?
  107. Where can I view the residual functional capacity forms?
  1. How does it financially benefit a Physician to assist the disabled?

    The disabled often lack medical care, because they have stopped working and therefore have no funds or medical insurance for medical treatment. The disabled, once adjudicated; can get health insurance through Medicaid, then Medicare insurance, the disabled prior to their adjudication by the Social Security Administration, often fall into the gap of having difficulty obtaining the evidence needed to prove to the Social Security Administration the severity and true nature of their affliction . If Physicians would be willing to treat a disabled person prior to his or her receiving disability benefits and honestly fill out one or two short forms to provide evidence of the disability, that doctor would help the disabled patient gather necessary evidence to get necessary medical treatment. In return, hopefully the physician obtain a life -long patient with a lifetime of Medicare Health Insurance once the patient is found to be disabled by the Social Security Administration.

  2. I thought Social Security had their own doctors who determine disability; is that correct?

    The doctors contracted to the SSA are usually general practitioners or family practitioners who do cursory physical examinations of claimants to see if they can see, hear, walk heel to toe, get on and off an examining table. Sometimes they may ask a claimant to grip the physician’s fingers or touch the claimant’s toes. The evaluation is a one shot, five minute deal and the physician is not one who knows the claimant or has a patient – physician relationship. The evaluations, at best produce ambiguously written information that hardly, if ever results in an Administrative finding of disability. These physicians often are afraid to write favorable observations and seem to think they are at risk losing their Social Security referral source. Moreover, the reports the SSA physician writes normally do not take into consideration the evaluations and treatment notes of the claimants treating physicians. They also do not specifically address that claimant’s Residual Functional Capacity for sitting, standing, walking, pain, memory and ability to concentrate.

    This is why the Administrative Law Judge pays little deference to reports filed by non-treating SSA doctors. It is noteworthy that the Rules pertaining to Judicial evaluations of patient evidence require the Administrative Law Judge to pay “great deference” and give “significant weight” to the regards and opinions of “Treating Physicians and Sources” to the extent that those opinions are consistent with the patient’s treatment records. This is why we specifically request our client who have treating sources to fill out “RFC” Residual Functional Capacity Questionnaires for our clients that can truthfully and factually relate what the claimants limitations are.

  3. Am I, the Patient’s treating physician qualified to complete a Residual Functional Capacity form for my patient? Don’t I need to send the patient out for a Functional Capacity Evaluation?

    The Social Security Administration (SSA) recognizes that Functional Capacity Evaluations (FCES) are costly and can reflect the bias of the technician who is not a medical doctor. As a consequence, the SSA puts great faith in the ability of treating physicians to determine the reasonable limitations on the Claimant’s ability to sit, stand, walk, reach, bend etc. based on the consistency of the patient’s clinical presentation and objective medical evidence of record.

    The SSA actually encourages the patient’s treating physicians to complete Questionnaires that address Residual Physical and Mental Functional Capacity and will send such questionnaires out to treating physicians to complete. There are no special training or courses or outside source requirements to complete these forms. ALL that is necessary is just an honest knowledge of the patient and desire to provide a reasonable medical opinion as to the patient’s limitations. An Administrative Law Judge will consider the limitations along with all the other evidence in the claimant’s file. In order to make an Administrative determination of disability that will be based on the Claimant’s medical diagnosis, residual physical and/or mental capacities, and a determination that is based on all the above, the claimant is unable to perform work that exists in sufficient numbers in the National Economy. Thus, “Disability” is ultimately a Vocational issue that is applied to the medical evidence and opinions of record. If based on the claimant’s age, education, transferrable job skills and ability to read and write the English language and residual functional capacity there are no such jobs available in the National economy in sufficient numbers to accommodate the claimant with his or her limitations, the claimant is considered disabled pursuant to Social Security Disability Guidelines. So one can see how helpful the conscientious completion of an RFC form by a treating physician truly is.

  4. When does the patient’s eligibility for Medicaid or Medicare benefits start?

    Eligibility for Medicaid begins on the date the SSA determined the claimant was disabled. So for the two years immediately subsequent to the claimant’s first day of being disabled the claimant’s medical bills will be paid by Medicaid. (Example, John Doe applies for disability (SSDI and SSI) on 1/5/06 saying he was disabled 12 months prior on 1/5/05. On 1/5/07 the SSA determines John Doe was disable as of 1/5/05 as he alleged. John’s Medical bill between 1/5/05 and 1/507 are billable reimbursable under Medicaid. After 1/5/07 John Doe’s bills are payable through Medicare.)

    On the second anniversary of the Claimant’s first date of disability as determined by the SSA (or upon reaching full retirement age whichever is first) the claimant becomes eligible for Medicare.

    For further information on Medicaid, Medicare and supplemental insurance issues we invite you to visit www.insureflorida.info.

  5. How can I learn more about Social Security Disability and issues involving payment for patient services under Medicare and Medicaid.

    Our law firm has seven offices conveniently located throughout the Tampa Bay area. You can read more about us and find answers to common questions for treating doctors on this site www.disabilityattorney.net. We can also offer a half hour presentation to educate your staff about the Social Security system, as well as what your patients need to prove eligibility for obtaining Medicare insurance as a disabled person. We also will be able to answer any of your Medicare/Disability questions thereafter. If you are interested in obtaining this information, please contact our office manager, Patricia Bretz at or office 888-NMM-LAWS or 813-264-5363.

    We look forward to building a productive relationship with your office to help these disabled patients/clients obtain the medical and disability benefits they have earned and deserve. We look forward to hearing from you.

  6. If a patient is in dire need of a transplant or in danger of losing his or her life without medical care and treatment, how would such a case be handled if that person was not already on Medicare?

    There is such a thing known as a “Compassionate Allowance Cases”. Such a case brings on an expedited high alert at the Social Security Administration. Even though an attorney would not earn any fees handling such a case we do all the time as a service to our community. Please refer to the other FAQS Social Security Disability Sections on this website or go to: http://www.ssa.gov/compassionateallowances to learn more.

  7. If a Disability Claimant is a Veteran who has applied for Social Security Disability or SSI Benefits, must my VA Doctor assist that claimant in completing paperwork helpful to my Social Security Disability or SSI case?

    Yes. According to VA Directive, a claimant’s VA Physician is mandated by VA Directive 2008-071 to render assistance to the claimant in completing forms that will assist trhe claimant in his petition for Social Security Benefits and benefits through other Federal programs.

    To view or download a copy of VA Directive 2008-071 click here.

  8. What is The General Analytical Framework for considering a Social Security Disability claim?

    The following is the legal analytical framework for accepting or rejecting a Social Security Disability Claim.

    Does the Claimant presently or did her/she during period of disability earn wages of $940 or more?

    At step one the ALJ must determine whether the claimant is engaging in substantial gainful activity (20CFR 404.1520(b) and 416.920(b)). Substantial gainful activity (SGA) is defined as work activity that is both substantial and gainful. If an individual engages in SGA, that individual is not disabled regardless of how severe that individual’s physical or mental impairments are and regardless of age, education, and work experience. If an individual is not engaging in SGA, the analysis proceeds to the second step.

    Is there anything medically wrong with the Claimant that interferes with his/her ability to work?

    At step two, the ALJ must determine whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments that is “severs” (20CFR 404.1520(c) and 416.920(c)). An impairment or combination of impairments is “severe” within the meaning of the regulations if it significantly limits the individual’s ability to perform basic work activities. If the claimant does not have a severe medically determinable impairment or combination of impairments, the claimant is not disabled. If the claimant has a severe impairment or combination of impairments, the analysis proceeds to the third step.

    Does any or do several of the impairments meet a listing?

    At step three, the ALJ must determine whether the claimant’s impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526(d), 416.925, and 416.909). If the claimant’s impairment or combination of impairments meets or medically equals the criteria of a listing and meets the duration requirement (20 CFR Part 404, Subpart P. Appendix 1 (20 CFR 404.1509 and 416.909), the claimant is disabled. If it does not, the analysis proceeds to the next step.

    What is the Claimant able and not able to do, given his/her mental and physical limitations? Can he/she do his/her past jobs?

    Past jobs go back 15 years from the onset date and only jobs that the Claimant did long enough to be able to master them. A simple job generally does not take long to master (a few months), while a complex one does.

    Before considering step four of the sequential evaluation process, the ALJ must first determine the claimant’s residual functional capacity (20 CFR 404.1520(e) and 416.920(e)). An individual’s residual functional capacity is the individual’s ability to do physical and mental work activities on a substantial basis despite limitations from the individual’s impairments. In making this finding, the ALJmust consider all of the claimant’s impairments, including impairments that are not severe. (20 CFR 404.1520(e), 404.1545, 416.920(e), and 416.945; SSR 96-8p)

    Next, the ALJ must determine at step four whether the claimant has the residual functional capacity to perform the requirements of the claimant’s past relevant work (20 CFR 404.1520(f) and 416.920(f)). If the claimant has the residual functional capacity to do the claimant’s past relevant work, the claimant is not disabled. If the claimant is unable to do any past relevant work or does not have any past relevant work, the analysis proceeds to the fifth and last step.

    In light of the residual functional capacity described above, since the Claimant cannot do his/her past work, what jobs can the Claimant perform?

    This area concerns vocational expertise. If a claimant has past relevant work in a given exterional category, then to get disability benefits, the claimant must not be capable of performing work in that extertional category, given his/her age, education and work experience. There are definitions for physical exertional categories and they apply whenever the claimant has a physical impairment. The code of federal regulations (CFR) 20 CFR §416.967, describes these physical exertion requirements as follows:

    Physical exertion requirements:

    To determine the physical exertion requirements of work in the national economy, we classify jobs as sedentary, light, medium, heavy, and very heavy. These terms have the same meaning as they have in the Dictionary of Occupational Titles, published by the Department of Labor. In making disability determinations under this subpart, we use the following definitions:

    1. Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
    2. Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
    3. Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.
    4. Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.
    5. Very heavy work. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light, and sedentary work.

    Generally, but not always, to get disability a person whose condition does not meet a listing must show that he/she is not capable of performing a sedentary work on a full time basis. Older people, those 50 and over, may be able to get benefits with the ability to work at light levels, depending on age, education, and work history and whether they learned any skills that could be used in other jobs (what is referred to as transferability of job skills).

    Mental impairments limitations

    These impairments consider a completely different set of circumstances. The CFR describes the limitations generally as follows: “A limited ability to carry out certain mental activities, such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, co-workers, and work pressures in a work setting, may reduce your ability to do past work and other work.” 20 C.F.R. §404.1545(c). The various limitations described in the mental residual functional capacity questionnaires address these limitations. The ability to function in the following categories is weighed: 1) activities of daily living (grooming, getting to and from work, ability to shop for food, maintain a household) ; 2) social functioning (ability to get along with and interact with people) 3) concentration, persistence and pace (ability to pay attention to work instructions and requirements); 4) episode of decompensation (hospitalizations, times when person is unable to leave home due to mental illness). An important factor for many Claimants is the ability to maintain concentration, persistence and pace, but all factors should be considered.

    At the last step of the sequential evaluation process (20 CRF 404.1520(g) and 416.920(g), the ALJ must determine whether the claimant is able to do any other work considering the claimant’s residual functional capacity, age, education and work experience. If the claimant is able to do other work, the claimant is not disabled. If the claimant is able to do other work and meets the duration requirement, the claimant is not disabled. Although the claimant generally continues to have the burden of proving disability at this step, a limited burden of going forward with the evidence shifts to the Social Security Administration. In order to support a finding that an individual is not disabled at this step, the Social Security Administration is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the residual functional capacity, age, education, and work experience (20 CFR 404.1512(g), 404.156(c), 416.912(g), and 416.960(c)).

  9. Is “Disability” a medical determination?

    Yes.

    A claimant may be entitled to SSDI or SSI if he or she meets a Medical Listing. The Medical listing are specific listings of impairments and are set forth in the Social Security’s Guide named Disability Evaluation Under Social Security. This guide is comprised of over two hundred and fifty pages of listed conditions and the criteria for meeting a listed medical condition. The conditions include Musculoskeletal System, Special Senses and Speech, Respiratory System, Cardiovascular and Digestive Systems, Genito-Urinary System, Hemic and Lymphatic Systems, Skin, Endocrine System, Multiple Body Systems, Neurological Disorders, Mental Disorders, Neoplastic Diseases, Malignancies and Disorders of the Immune System. These Systems shall be discussed further infra as to specific information and opinions sought to effectively determine whether a claimant will qualify for disability under any of the rubrics aforesaid.

    No.

    “Disability” is an Administrative determination, not a medical one. Life would be just too easy if a physician were to write a note that a claimant was “disabled” and he or she could get deserved benefits. It would not be right either because some people can afford doctors who may want to help by writing such things and some people, especially the rural poor cannot.

    By way of analogy, such a system would be like having a forensic pathologist come onto the stand in a homicide case and testifying before the jury that the defendant’s DNA was found at the scene of the crime and that the defendant was guilty and then the doctor would pronounce sentence, lead the poor defendant out of the courtroom and then pull the switch, much to the astonishment of the judge and the jury.

    In both cases there are laws, due process and notions of equality and fairness involved. That is why doctors are asked to give opinions on medical issues and the sorts of limitations that the claimant has or can be expected reasonably to have based on his or her diagnostic test results and clinical findings. Judges depend heavily on such things in coming to a sound and well reasoned conclusion as to why one claimant may be disabled and why another may not be. A physician’s writing that a claimant is “disabled” is ignored and may actually cause an ALJ some ira, as the determination is the judge’s to make by law. The statement that the claimant “is prohibited by his/her medical condition from engaging in either full time or interrupted part time employment” and a statement of the reasons therefore will hold great weight if such a statement comes from a treating physician. We highly recommend the use of this language and supportive content, rather than simply saying or writing that a claimant is “disabled”.

    Finally, since a determination of disability requires vocational and earnings calculations and analysis, physicians, unless they have a graduate degree in Vocational Evaluation, cannot give an expert opinion in these regards. For example, if I am an attorney and blind in one eye and have no leg and am missing four fingers and have a bad back requiring me to be wheelchair bound, one might say I was disabled, however; if I am able to earn pay in excess of SGA levels I am not disabled even though I can only work, lets say ten hours per month. That is why “Disability” is wisely left to the province of a judge, else wise, there would be too many attorneys collecting SSDI benefits.

  10. If disability is not per se a medical determination what issues will the court consider in a Social Security Disability case to decide if a person is disabled or not?

    The issue before the Court in a Social Security Disability case will be whether the Claimant is “disabled” within the meaning of the Social Security Act, Sections 216(i), 223(d) and 1614(a)(3)(A)as amended. “Disability” is defined as the “inability to engage in any substantial gainful employment by reason of any medically determinable physical or mental impairment or combination of impairments that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months”.

    With respect to the claim for a period of disability and disability insurance benefits, there may be an issue as to whether the insured status requirements of sections 216(i) and 223 of the Social Security Act are met. The claimant’s earnings record must show that the claimant has acquired sufficient quarters (“Date Last Insured, or, DLI”) to remain insured through at least the claimant’s alleged date of onset of disability.

  11. If a physician writes that a claimant was unable to work full time at any employment from a date certain how is that relevant to his or her claim?

    The dater a claimant was last able to work from a medical standpoint is important as a claimant may only be insured for disability benefits for a few years after he or she stops working. A claimant’s DLI is his/her “Date Last insured”.

    This means the Date a claimant was last insured for SSDI benefits. If one is found disabled prior to the DLI, he or she will be eligible for SSDI benefits. If found disabled after the DLI, SSI benefits (ie., welfare for the disabled paid at very low amounts) are the only form of monetary disability benefits to which a claimant may be entitled. If a claimant is entitled to at least one dollar of SSDI or SSI benefits he or she will qualify for Medicaid benefits for the first two years of disability and for Medicare benefits thereafter.

  12. If “disability“ is not a medical determination, but an administrative one, what law will apply in a Social Security Disability case?

    Under the authority of the Social Security Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled (20CFR 404.1520(a) and 416.920(a)). The steps are followed in order. If it is determined that the claimant is or is not disabled at a step of the evaluation process, the evaluation will not go on to the next step.

  13. What happens at step 1 of the sequential evaluation process?

    At step one the ALJ must determine whether the claimant is engaging in substantial gainful activity (20CFR 404.1520(b) and 416.920(b)). Substantial gainful activity (SGA) is defined as “work activity that is both substantial and gainful. If an individual engages in SGA, that individual is not disabled regardless of how severe that individual’s physical or mental impairments are and regardless of age, education, and work experience”. If an individual is not engaging in SGA, the analysis proceeds to the second step.

  14. What happens at step 2 in the sequential evaluation process?

    At step two, the ALJ must determine whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments that is “severe” (20CFR 404.1520(c) and 416.920(c)). An impairment or combination of impairments is “severe” within the meaning of the regulations if it significantly limits the individual’s ability to perform basic work activities. If the claimant does not have a severe medically determinable impairment or combination of impairments, the claimant is not disabled. If the claimant has a severe impairment or combination of impairments, the analysis proceeds to the third step.

  15. What happens at step 3 in the sequential evaluation process; is a medical opinion relevant here?

    Yes. This issue needs to be addressed, at least briefly here and a further description will be found further on in this section. Suffice it to say for now that at step three, theALJ must determine whether the claimant’s impairment or combination of impairmentsmeets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526(d), 416.925, and 416.909). If the claimant’s impairment or combination of impairments meets or medically equals the criteria of a listing and meets the duration requirement of 12 months or more,(20 CFR Part 404, Subpart P. Appendix 1 (20 CFR 404.1509 and 416.909), the claimant is disabled. If it does not, the analysis proceeds to the next step.

  16. Must an ALJ consider anything before continuing onto step 4 in the sequential evaluation process?

    Before considering step four of the sequential evaluation process, the ALJ must first determine the claimant’s residual functional capacity (20 CFR 404.1520(e) and 416.920(e)).

  17. What is Residual Functional Capacity?

    An individual’s “residual functional capacity” or RFC is the individual’s ability to do physical and mental work activities on a substantial basis despite limitations from the individual’s impairments. In making this finding, the ALJ must consider all of the claimant’s impairments, including impairments that are not severe. (20 CFR 404.1520(e), 404.1545, 416.920(e), and 416.945; SSR 96-8p)

  18. How is RFC determined; is this where a physician can be of any aid?

    Yes. A claimant’s RFC is based in great part on what a treating physician may say or write about what a claimant can or cannot do. How long can he or she sit, stand or walk without having to move to avoid pain, how much a claimant can lift, especially in a competitive work environment, how often will the claimant’s condition interfere with his attendance at work or interfere with his or her working a normal work day or week without symptomatic interruption or the need for medical treatment. The important information sought is set out below in our RFC section.

  19. What happens at step 4 of the sequential evaluation process?

    Next, the ALJ must determine at step four whether the claimant has the residual functional capacity to perform the requirements of the claimant’s “past relevant work” (20 CFR 404.1520(f) and 416.920(f)). If the claimant has the residual functional capacity to do the claimant’s past relevant work, the claimant is not disabled. If the claimant is unable to do any past relevant work or does not have any past relevant work, the analysis proceeds to the fifth and last step.

  20. What is Past Relevant Work?

    Past relevant work is work that the claimant has done in the past for more than three months at a full time capacity for wages or remuneration.

  21. What happens at step 5 of the sequential evaluation process?

    At the last step of the sequential evaluation process (20 CRF 404.1520(g) and 416.920(g), the ALJ must determine whether the claimant is able to do any other workconsidering the claimant’s residual mental and/or physical functional capacity, age, education and work experience. If the claimant is able to do other work, the claimant isnot disabled. If the claimant is able to do other work and meets the duration requirement, the claimant is not disabled. Although the claimant generally continues to have the burden of proving disability at this step, a limited burden of going forward with the evidence shifts to the Social Security Administration. In order to support a finding that an individual is not disabled at this step, the Social Security Administration is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given his or her residual functional capacity, age, education, and work experience (20 CFR 404.1512(g), 404.156(c), 416.912(g), and 416.960(c)).

  22. Why the National economy?

    The National economy is used because the SSA governs a national program where it is presumed that labor will follow capital to and for work if it is available in significant numbers within the United States’ borders. So, if you live in a rural area and are disabled because you cannot find work that you can do, but if there were jobs like surveillance system monitors, gate guards, parking lot attendants or garment sorters in Chicago, Miami, New York, Los Angeles, then the law requires you to move to such places to find work within your residual functional capacity.

  23. What generally does the court consider in evaluating a case?

    The judge will consider when a Claimant was born and his or her years of age, education that may either consists of a high school graduate, less than high school education and whether the claimant is literate, or illiterate in English and age at the time the present claim was filed. The judge will also consider the claimant’s RFC and whether a claimant has special education or training or schooling that would create skills or learning that could be used by the claimant in another occupation within his or her RFC. The judge will also consider whether the claimant has a consistent or inconsistent past earnings history. An insignificant earnings history, unless otherwise adequately explained is somewhat detrimental to a finding of disabled in a disability case.

    The judge will also consider whether the claimant has or has not engaged insubstantial gainful activity since the claimant’s alleged onset date, presumably the date upon which the claimant stopped work.

  24. What about earnings subsequent to the filing of a disability claim?

    As part of his or her analysis of your disability claim, the judge will also consider whether the claimant has received income subsequent to the alleged onset date and whether that is SGA or an Unsuccessful Return to SGA, or an EPE (Extended period of Earnings)

  25. What about earnings subsequent to the filing of a disability claim?

    As part of his or her analysis of your disability claim, the judge will also consider whether the claimant has received income subsequent to the alleged onset date and whether that is SGA or an Unsuccessful Return to SGA, or an EPE (Extended period of Earnings)

  26. Will the judge consider a claimant’s mental or psychiatric condition in determining if I am disabled or not?

    Yes. The judge will also consider whether the claimant suffers primarily from the following physical or mental impairments which are considered severe under Appendix 1 to subpart P or Part 404 of 20 CFR and from depression, or anxiety, or other conditions that are severe enough to interfere with the Claimant’s activities of daily lifeand preclude the Claimant from substantial gainful activity and/or full time employment or its equivalent.

    It is hoped that the evidence in a case will show that the claimant cannot and could not perform sustained work activities in a competitive work environment and as a result thereof; is disabled now and was disabled at the time of the date upon which the Claimant has alleged the Claimant was disabled.

  27. Will the judge consider whether a claimant meets a Medical listing?

    Yes, a medical listing is the simplest and most expedient way for a judge to determine whether a claimant is disabled. If a claimant’s illness is so severe that is listed and the level of severity is met as founds in the Listing of Impairments, the judge may direct a finding of disabled pursuant to a Medical Listing. Finding that a claimant meets a listed impairment is the most expedient and secure way the SSA can make a determination of impairment and thereby circumvent the necessity for hearing and award benefits in a timely fashion.

  28. Besides a Medical Listing, is there some other way for a claimant to get disability benefits?

    Yes. A judge may award benefits also pursuant to a Vocational Rule number commonly known as “The Grids”, or Social Security Ruling Number, known euphemistically as “SSRs”.

  29. If the judge does not find that a claimant meets a Medical, Vocational or Social Security Rule listing, can a claimant still be found disabled?

    Yes, Should a medically determinable impairment not be found by the Court to meet a listed impairment, the Claimant’s impairment or combination of impairments may be considered the medical equivalent of a listed impairment, as they have the level of severity that meets or equals the criteria of the listings and result in a residual functional capacity that is so restrictive or reduced that such a residual functional capacity would not enable the Claimant to engage in substantial gainful activity.

  30. What about a claimant’s work background, what will the judge consider?

    The judge will consider the last grade the Claimant completed and whether the Claimant has past relevant work, work that was done full time for more than three months at a time for which the claimant was paid.

    The judge will consider whether the Claimant was last employed and how the work was performed by the Claimant at skilled, semi-skilled, unskilled work, and whether the work was done by the Claimant at the sedentary, light, medium or heavy exertional level. The judge will also consider whether the claimant’s skills are transferable, or are not a material factor in the determination of the claimant’s disability.

    Ultimately, the judge must conclude that as of the date claimed by the Claimant as the onset of the Claimant’s disability, the Claimant was no longer able to perform the regular tasks of the Claimant’s previous occupation. Unfortunately, the analysis does not end there.

  31. What about a claimant’s past and present medical care and treatment, does the judge have to consider that?

    The judge must determine whether the claimant has received medical evaluations and/or treatment for the conditions underlying the Claimant’s disability and the medical records and exhibits within the Medical or AF@ Section of the Claimant’s claim file that document that the Claimant has medically severe impairments. That is why we encourage our clients to get continuing medical care in any way they can get it from reliable sources. Medical opinions without treatment notes that substantiate treatment and care are not given much weight by the ALJ or SSA.

  32. Does it matter that a claimant cannot afford medical treatment because he or she is poor?

    Yes. The judge must consider whether a claimant has been unable to maintain or undergo adequate continuing medical care and adequate treatment due to lack of funds sufficient for said medical care. Often, self represented claimants do not know this and it is not brought out at their hearing and their claims fail because of the fact that there is an unexplained lack of ongoing medical care.

  33. Does the judge have to take into consideration a claimant’s residual functional capacity, physical, postural and exertional limitations at the hearing?

    Yes, he or she should. The record should show that a claimant has some Residual Functional Capacity. At our offices, for our clients we use a residual physical functional capacity Questionnaire dated and completed by the Claimant’s treating physician, an examining physician, or even a non-examining physician, to document and confirm that the Claimant has the conditions or restrictions and resultant residual physical incapacity.According to the reporting physician, the Nature, frequency and length of contact with the claimant is described along with the claimant’s diagnosis,the Claimant’s prognosis and the Claimant’s symptoms, including pain, dizziness, fatigue, etc., We also have the physician determine how the Claimant’s pain was characterized in the nature, location, frequency, precipitating factors, and severity based on clinical findings and objective signs.

    We have the doctor described the treatment and response including any side effects of medication that may have implications for working, e.g., drowsiness, dizziness, nausea, and whether the Claimant’s impairments either lasted or could be expected to last at least twelve months. We have the doctor also state whether the Claimant is or is not a malingerer and whether emotional factors contribute to the severity of the Claimant’s symptoms and functional limitations. These are important considerations in your case. We ask the responding physician to identify any psychological conditions affecting the Claimant’s physical condition to see it they include depression, somatoform disorder, anxiety, personality disorder, or other impediments to work.

    The reporting physician further is asked to opine whether the Claimant’s impairments (physical impairments plus any emotional impairments) were reasonably consistent with the symptoms and functional limitations described in the evaluation and further whether during a typical workday the Claimant would frequently or constantly experience of pain or other symptoms that would be severe enough to interfere with attention and concentration needed to perform even simple work tasks, a very important consideration in your disability case. Note, “frequently” is described to mean 34% to 66% of an 8-hour working day.

  34. Does stress matter in a claimant’s disability case?

    Yes. With reference to a claimant’s capability to endure stress, stress matters. In our RFCs we ask our responding physician’s opinion as to whether the Claimant is: Incapable of even “low stress” jobs, Capable of low stress jobs, Capable of jobs involving moderate stress, or Capable of high stress work. We ask the physician to explain the reasons for these conclusions to further strengthen his/her opinion.

  35. What about what a claimant can or cannot do in a competitive work situation?

    As a result of the Claimant’s impairments, we request our client’s physician to further opine that if the Claimant were placed in a competitive work situation, the Claimant’s functional limitations. For example how long can the Claimant walk. How many minutes, or city blocks without rest or severe pain, and how long could the claimant sit at one time before needing to get up. We ask how long The Claimant could stand before needing to sit down, walk around, etc., and how long the Claimant could sit at one time without having to get up and finally. We also ask the physician to evaluate the total time of stand/sit/walk in an 8-hour working day (with normal breaks) as this effects sustained employment situations. We also ask whether our claimant would need to include periods of walking around during an 8-hour working day and how often that this would happen and at what frequency of that the Claimant (on average) would have to rest before returning to work. Again, these are important opinions to have in determining whether there are any jobs out there in the national economy that the claimant could reasonably do. It is also important that the responding physician opine whether or not a Claimant would need a job that permitted shifting positions at will from sitting, standing or walking and would or would not sometimes need to take unscheduled breaks during an 8-hour working day, and how often that this would happen and at what frequency and the duration of time that the Claimant (on average) would have to rest before returning to work.

    Because there are so few jobs available in the national economy that allow employees to work with restrictive limitations it is also important for a reliable physician to opine that with prolonged sitting, the Claimant’s leg(s) need to be elevated and as to how highshould the leg(s) be elevated and what percent of an 8 hour work day this restriction would apply. This is especially important for diabetics with foot problems, people with lower extremity lesions or surgeries that have failed to be cured with surgery or people with failed back syndromes and arthritic knees.

    Additionally, if the physician who is so kind as to complete one of our Questionnaires also sets additional postural limitations, or If the reporting physician opined that while engaging in occasional standing/walking, the Claimant would have to use a cane or other assistive device, so much the better for proving the disability case, as the use of a cane denotes a person who has trouble walking up steps and across sandy or uneven surfaces and who cannot walk long distances. If crutches or two canes are necessary, the claimant’s residual use of his/her hands may be impaired as well further compelling a determination of disability.

  36. Will the judge consider a claimant’s reasonably imposed lifting restrictions and why?

    Yes. The judge and hopefully the claimant’s treating physician will opine as to weights a claimant can lift occasionally, rarely or frequently. The judge will consider whether the Claimant could never, rarely, occasionally, or frequently lift and carry less than 10 lbs, 10 lbs, 20 lbs, or 50 lbs., in a competitive work situation.

    The judge and hopefully a reporting physician will opine that the Claimant could further:never, rarely, occasionally, frequently, look down (sustained flexion of neck); turn his/her head right or left, look up or hold his/her head in static position and be able to twist; be able to crouch/squat be able to climb ladders and be able to climb stairs. The judge will also have to determine that the Claimant would have significant limitations withreaching, handling or fingering and indicated as a consequence thereof that the percentage of time during an 8-hour working day that the Claimant had limited use hands/fingers/arms to grasp, turn, twist objects, on the right and left side.

  37. What if a claimant has good days and bad days, does that come into play in a Social Security disability case?

    Yes. The judge will consider testimony and opinions from a treating physician if the attorney gets these opinions into evidence. Claimants will have good and bad days, so whether a claimant will have good days and bad ones is an important consideration especially if the treating physician can corroborate this based on the claimant’s presentation and clinical appearances over time. We ask our reporting physician to opine that the Claimant’s impairments are likely to produce “good days” and “bad days” and estimate, on the average, that the Claimant would likely be absent from work as a result of the impairments or treatment. The Claimant’s number of absences due to the impairment and treatment is an important consideration for the judge, as “Disability” is a vocational determination and unfortunately, not a medical one. If a claimant is absent two or more days per month due to medically, psychiatrically related issues or a need for treatment, two days or more is not therefore vocationally within standard industrial tolerances, which on the average has been traditionally once but fewer than twice per month.

    A reporting physician who also describes other limitations that would affect the Claimant’s ability to work at a regular job on a sustained basis is very helpful to our cases.

    Finally, since your date of disability must be supported by competent medical evidence of record and objective findings of record, we find it helpful for a physician to further opine as to the earliest date that the description of symptoms and limitations in the completed questionnaire would apply, since that will help establish the date the claimant’s symptoms were so severe, he would be entitled to an administrative determination of being “Disabled”.

  38. As a physician, I treat patients. Don’t these RFCs have to be completed by a Social Security Doctor, or as a consequence of “Functional Capacity Evaluations” done at testing facilities?

    No. The Rules of the Social Security Administration explicitly give a claimant’s treating physician not only the permission to complete these forms but give the forms conscientiously completed by the claimant’s treating physician “Great Weight” in determining whether or not the claimant is disabled. Functional capacity testing at an outside facility is not necessary and is not engaged in by the SSA. One of the reasons is that these tests are performed by people who are not physicians and who may have a subjective predeliction toward weighing the results And by rendering an opinion that, though “technical”, is not a medical one. In the past, before the number of ALJs became too few to handle the case overload, the ALJs would send a claimant’s treating physician similar questionnaires to complete. With the advent of the baby boom becoming infirm, there is just not enough time and manpower in the SSA to send these out. Unfortunately, the lack of personnel at SSA has caused the privatization of the process forcing attorneys and representatives for the claimant to do what once was a government function paid for by our tax dollars.

  39. What about non-exertional limitations, like mental impairments, are they considered in a disability case?

    Yes, a claimant’s mental impairment is an important for the judge to consider as part of his or her case. Based on the Claimant’s psychiatric and/or psychological history, evaluations, hospitalizations and/or other treatment records, if a claimant has a combination of psychiatric or mental impairments which are considered to be “severe” under Subpart P, Regulation No.4 of the Social Security Act he or she may be awarded benefits. Additionally, a Claimant’s Drug addiction and alcoholism are important if they are contributing factors material to the determination of the claimant’s disability impairment and if such drug or alcohol problem in the claimant will not meet the criteria of Section 12.04, et seq., A and B of the impairments listed in Appendix 1, Subpart P of the regulations and so benefits will be denied.

  40. What good can a psychologist or psychiatrist or even a general or family practitioner who prescribes me anti-anxiety or anti-depression medications be in proving a disability case?

    Even if the strongest an in the world had a serious psychological illness, he might not be able to do even simple repetitive tasks or remember simple one or two part steps of production and as a consequence, would probably be disabled. Often we hear, “I see him and he doesn’t look disabled”. This is often true with those with psychological afflictions.

    A GP, PCP or family practitioner and psychiatrist or psychologist can identify the Claimant as having the following signs and symptoms of anhedonia or pervasive loss of interest in almost all activities, appetite disturbance with weight change, decreased energy, thoughts of suicide, blunt, flat or inappropriate affect, feelings of guilt or worthlessness, impairment in impulse control, poverty of content of speech, generalized persistent anxiety, somatization unexplained by organic disturbance, mood disturbance, difficulty thinking or concentrating, recurrent and intrusive recollections of a traumatic experience which are a source of marked distress, psychomotor agitation or retardation, pathological dependence, passivity or agressivity, persistent disturbances of mood or affect, persistent nonorganic disturbance of vision, speech, hearing, use of a limb, movement and its control, or sensation, change in personality, apprehensive expectation, paranoid thinking or inappropriate suspiciousness, recurrent obsessions or compulsions which are a source of marked distress, seclusiveness or autistic thinking, substance dependence, incoherence, emotional withdrawal or isolation, psychological or behavioral abnormalities associated with a dysfunction of the brain with a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities, bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes), persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity or situation, intense and unstable interpersonal relationships and impulsive and damaging behavior, disorientation to time and place, perceptual or thinking disturbances, hallucinations or delusions, hyperactivity, motor tension, catatonic or other grossly disorganized behavior, emotional lability, flight of ideas, manic syndrome, deeply ingrained, maladaptive patterns of behavior, inflated self-esteem, unrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury, unrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury, loosening of associations, illogical thinking, pathologically inappropriate suspiciousness or hostility, pressures of speech, easy distractibility, autonomic hyperactivity, memory impairment – short, intermediate or long term, sleep disturbance, oddities of thought, perception, speech or behavior, decreased need for sleep, loss of intellectual ability of 15 IQ points or more, recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week, a history of multiple physical symptoms (for which there are organic findings) of several years duration beginning before age 30, that have caused the individual to take medicine frequently, see a physician often and alter life patterns significantly, involvement in activities that have a high probability of painful consequences which are not recognized. So, if you find that you have one or more of these symptoms, you might want to get checked out by a good professional, not only for your own good, but it may be helpful in proving your disability case.

  41. Will the judge consider a claimant’s ability to do work-related activities on a day-to-day basis in a regular work setting?

    Based on a doctor’s examination of how the Claimant’s mental/emotional capabilities were affected by the impairment(s), and considering the medical history, the chronicity of findings (or lack thereof), and the expected duration of any work-related limitations, but not the Claimant’s age, sex or work experience, the judge will examine a Claimant’s mental abilities and aptitudes to do skilled, semi-skilled and unskilled work.

  42. What sort of things must a physician, psychologist or psychiatrist find or will they look for in determining a claimant’s aptitude and ability to do Unskilled Work?

    Part of what a judge will consider is whether you are seriously limited but not precluded or unable to meet competitive standards or have no useful ability to function in a work like setting. For example, the doctor and judge will consider a claimant’s ability to remember work-like procedures, ability to understand and remember very short and simple instructions, ability to maintain attention for a two hour segment, ability to maintain regular attendance and be punctual within customary, usual strict tolerances. ability to sustain an ordinary routine without special supervision, ability to work in coordination with or proximity to others without being unduly distracted, ability to make simple work-related decisions, ability to complete a normal workday and workweek without interruptions from psychologically based symptoms, ability to perform at a consistent pace without an unreasonable number and length of rest periods, ability to ask simple questions or request assistance, ability to accept instructions and respond appropriately to criticism from supervisors, ability to get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes, ability to respond appropriately to changes in a routine work setting, In the ability to deal with normal stress , and the ability to be aware of normal hazards and take appropriate precautions. These are all important considerations in the administrative determination as to whether or not a claimant with a mental impairment is disabled.

  43. What about a Claimant’s mental abilities and aptitudes needed to do Semiskilled and Skilled Work, what is considered by the judge or medical expert?

    The judge or medical expert in a Social Security Disability case will consider whether a person with a psychological handicap is seriously limited but not precluded or unable to meet competitive standards or has no useful ability to function in the ability to understand and remember detailed instructions , in the ability to meet competitive standards, in the ability to carry out detailed instructions, in the ability to set realistic goals or make plans independently of others, in the ability to deal with stress of semiskilled and skilled work

  44. What about a Claimant’s ability to do other types of jobs?

    The judge or physician will determine a claimant’s mental abilities and aptitudes needed to do particular types of jobs. For example if a claimant is found to be unable to meet competitive standard or no useful ability to function in the ability tointeract appropriately with the general public, in the ability to maintain socially appropriate behavior, in the ability to adhere to basic standards of neatness and cleanliness, in the ability to use public transportation, or in the ability to travel in unfamiliar places, it is an indicator that the claimant is probably disabled psychologically from any job that may exist in the national economy.

  45. What about a “Mental Impairment Analysis”? What is it and what does a judge look for?

    Commonly known as “B” Criteria Listings, with reference to the rating of functional limitations or “B” Criteria of the Listings, the reviewing physician may indicate that the degree that the Claimants functional limitations (which are found in paragraph B of listings 12.02-12.04, 12.06-12.08 and 12.10 and paragraph D of 12.05) exist as a result of the individual’s mental disorder(s) and can be found by a psychologist or psychiatrist or medical doctor to be of either Mild, Moderate, or Marked*,Extreme* difficulty or restrictions in: a claimant’s Activities of Daily Living, or in maintaining a claimant’s normal Social Functioning or maintaining Concentration, Persistence, or Pace.

    *If these restrictions are Marked or Severe, a claimant may very well be disabled from a psychological standpoint. Moreover, if a claimant is determined to be Suffering Repeated Episodes of Decompensation, each of extended duration measured more as to frequency than to duration two or more times per year, he or she may actually meet a psychiatric medical listing and be eligible for benefits.

  46. What are “C” Criteria listings?

    “C” listings reflect the existence of an extremely severe mental condition. With reference to the “C” Criteria of the Listings the judge through the use of psychiatric evidence will look to see if the claimant to has: evidence that does establish the presence of the “C” criteria, a medically documented history of a chronic organic mental (12.02), schizophrenic, etc. (12.03), or affective (12.04) disorder of at least 2 years’ duration that has caused more than a minimal limitation of ability to do any basic work activity, with symptoms or signs currently attenuated by medication or psychosocial support, and repeated episodes of decompression, each of extended duration, a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate, current history of 1 or more years’ inability to function outside a highly supportive living arrangement with an indication of continued need for such an arrangement or the complete inability to function independently outside the area of one’s home.

  47. What are “GAF SCORES” and why are they relevant to a finding of a disability based on psychiatric grounds?

    Your GAF score is a “Global Assessment of Function” numerical short hand used by mental health practitioners to document how a patient is doing over all mentally. According to the DSM IV, there are numerous ratings set forth below.

    For example a GAF of (91 – 100): would reflect superior functioning in a wide range of activities, life’s problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms.

    A GAF of (81 – 90): Absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an argument with family members).

    A GAF of (71 – 80): If symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g. difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).

    A GAF of (61 – 70): Some mild symptoms (e.g, depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

    A GAF of (51 – 60): Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).

    A GAF of (41 – 50): Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

    A GAF of (31 – 40): Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood) (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).

    A GAF of (21 – 30): Behavior is considerably influenced by delusions or hallucinations or serious impairment, in communication, or judgment (e.g., stays in bed all day, no job, home or friends).

    A GAF of (11 – 20): Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent, manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute).

    A GAF of (1 – 10): Persistent danger or severely hurting self or others (e.g., recurrent violence) or persistent inability to maintain minimal hygiene or serious suicidal act with clear expectation of death.

  48. If a claimant is psychologically disabled, will he or she be allowed to manage his or her own money?

    Probably, but this is taken on a case by case basis. At a claimant’s hearing or in his order, your judge will also opine that the Claimant can or cannot manage benefits in his or her own best interest. If the claimant cannot manage his/her own funds, an alternative payee may have to be appointed.

  49. Do a claimant’s subjective complaints of pain have to agree with test results or clinical findings by a physician to be relevant?

    Yes. A Claimant’s complaints of pain and restriction must comport with the objective findings, medical evidence and treatment notes and should, as a consequence thereof, be found to be credible. The Claimant’s testimony must be supported by objective medical evidence of a condition that can reasonably be expected to produce those symptoms of which the Claimant complains and, thereby, is sufficient to sustain a finding of disability. Johns v.Bowen, 821 F.2d 551,554 (11th Cir.1987). See 42 U.S.C. sect. 423(d)(5)(A).

  50. Based on the elements of record and the claimant’s statements of record and in light of the objectively documented physical and medical findings within the record if the Claimant does not have the residual functional capacity to perform a full range of even sedentary work or is generally unable to sustain or maintain an eight hour workday or a forty hour work week or its equivalent on a regular and consistent basis is he or she disabled?

    Yes.

  51. Based on the Claimant’s age, education, transferable job skills or lack thereof and based on the Claimant’s Residual physical and Mental Residual Functional Capacity, and where the Claimant is significantly unable to engage in substantial gainful activity or sustained full time employment is such a person disabled?

    Yes, such a claimant has been under a disability, as defined in the Social Security Act.

  52. If a claimant does have an impairment or combination of impairments that meets or medically equals one of the listed impairment(s) in 20 CFR 404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)) is he or she disabled?

    Yes.

  53. If the severity of the claimant’s (mental) affective disorder impairment meets the criteria of listing section 12.04 et seq., of 20 CFR Part 404, Subpart p, Appendix (20 CFR 404.1520(d) and 404.1525) is that claimant disabled?

    Yes.

  54. If, after careful consideration of the record, the judge finds that a Claimant’s limitations so markedly restricted the Claimant’s ability to perform even sedentary work, as defined by the regulations and result in such an erosion of the occupational base for which the Claimant would otherwise qualify that there are no jobs available in the national economy which the Claimant could perform is the claimant disabled?

    Yes.

  55. If, after careful consideration of the record, the judge finds that a claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with lifting no more that 10 pounds occasionally and can stand/walk no more than 2 hours in an eight hour day. And sit for less than two hours of an eight hour day, would that person be disabled?

    Probably.

  56. If, after careful consideration of the record, the judge finds that a claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with lifting no more that 10 pounds occasionally and can stand/walk no more than 2 hours in an eight hour day. And sit for less than two hours of an eight hour day, would that person be disabled?

    Probably.

  57. In making his or her decision, is there any form of analytical process the judge must use in determining whether or not the claimant may be entitled to benefits?

    Yes. In making his finding the ALJ should consider all symptoms to the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-79, In the 11th Circuit, a claimant who alleges disability on subjective complaints of pain must show evidence of an underlying medical condition, and either: (1) objective medical evidence that confirms the severity of the alleged pain from that condition; or (2) that the objectively determined medical condition is of such a severity that it can reasonably be expected to give rise to the alleged pain (Landry v. Heckler, 782 F 1551 (11th Cir. 1986)) and also consider the opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p,96-5p, 96-6p, and 06-3p.

    After considering the evidence of record, the ALJ should find that the claimant’s medically determinable impairment(s) could reasonably be expected to produce the alleged symptoms and that the claimant’s statements concerning the intensity, persistence, and limiting effects of these symptoms are generally credible.

    The Contrary State agency medical opinions are given little weight because the State agency consultants did not adequately consider the claimant’s subjective complaints of pain, which should appear credible in light of the objective and clinical findings noted above. The State agency also failed to consider the combined effect of all of the claimant’s impairments, including the recent evidence submitted by the claimant.

  58. If a claimant’s acquired job skills do not transfer to other occupations within the residual functional capacity as defined in (20 CFR 404.1568 and 416.966) and the claimant does not have transferable job skills that would enable the claimant to return to either regular full time employment or substantial gainful activity is that claimant disabled?

    Yes.

  59. If considering the claimant’s age, education, work experience, transferable job skills and lack thereof, if there are no jobs that exist in significant numbers in the national economy that the Claimant can perform (20 C.F.R. 404.1560(c), 404.1566, 416.9608, and 416.966) is he or she considered disabled?

    Yes.

  60. What if there may be some job out there like Wal-Mart Greeter that my patient may be able to do, is he or she not disabled?

    I wish it were that simple. Just because one can do some job, it does not necessarily mean that one is not disabled.

    In determining whether a successful adjustment to other work can be made, the ALJmust consider the claimant’s residual functional capacity, age education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If the claimant can perform all or substantially all of the exertional demands at a given level of exertion, the medical-vocational rules direct a conclusion of either “disabled” or “not disabled” depending on the claimant’s specific vocational profile (SSR 83-11)

    Even if the claimant had a residual functional capacity for a full range of sedentary work, considering the claimant’s age, education, and work experience, a finding of “disabled” would be directed by Medical-Vocational Rule 201. 01 et seq.,

    Due to the Claimant’s age, vocational background, lack of transferable job skills and residual functional capacity, a disabled Claimant would be unable to make a successful adjustment to any jobs that exist in significant numbers in the national economy so as to engage in substantial gainful activity or sustained full time employment. Considering the Claimant’s physical and/or mental limitations, if the Claimant cannot make and adjustment to any work that exists in significant numbers in the national economy and consequently, based on the Social Security Ruling 85-15, a finding of disabled should be reached therefore within the framework of medical-vocational rules.

    Interaction and the limiting effects of her impairments on her past relevant work to determine whether the claimant could still do that work, an ALJ’s decision to deny the claimant benefits because she could return to past relevant work would not be supported by substantial evidence.

  61. Must an ALJ elicit testimony from a vocational expert (VE) if it is found that a claimant cannot go back to my past relevantd. work?

    Yes, as a consequence of a claimant being unable to return to past relevant work, an ALJ should elicit VE testimony to determine whether the claimant could perform other work. Foote v.Chater, 67 F.3d 1553 (11th Cir. 1995).

  62. What if a claimant is absent excessively or suffer from incontinence due to his or her condition, will that be considered as part of the Social Security Disability case?

    In addition to the claimant’s absences and absenteeism due to her condition, the issue of the claimant’s incontinence is also highly relevant to the claimant’s ability to return to work and AN ALJ’s failure to properly weigh and consider it can be reversible error. Incontinence can be an impairment for purposes of the being found disabled under The Social Security Act and must be considered by an ALJ in determining whether the claimant is disabled. Crowley v. Apfel, 197 F.3d 194 (5th Cir.1999). Where the record is plain that a claimant could not return to past relevant work not only due to her absences due to her nephritic condition but also due to pain and her need to use the restroom frequently, benefits may well be rewarded.

  63. Does a claimant’s pain really matter in a disability case?

    Yes, a claimant’s subjective complaints of pain which are consistent with and supported by objective medical evidence and as such should have been entitled to great weight, See Urtz v. Callahan, 965 F.Supp.324,328 (N.D.N.Y. 1997). The claimant’s subjective complaints that are supported by the evidence should be given such deference and weight especially in light of any extensive hospital record and opinions of treating physicians that support such a conclusion. In fact an ALJ must give legitimate reasons to discredit the claimant’s testimony especially where there was no suggestion of exaggeration of symptoms from the record and the claimant’s treating physician supports the claimant’s testimony. See, Dvorak v Celebrezze, 345 F. 2d 897 (10th Cir. 1965)

  64. Must a judge sufficiently articulate the reasons for assigning treating physicians opinions little or no weight and relying instead on parts of the opinion of a non-examining medical consultant that had not examined the claimant or considered the record as a whole?

    It is axiomatic that an ALJ has a basic duty to develop a full and fair record. Brown v. Shalala, F. 3d 931,934 (11th Cir. 1995) An ALJ cannot patently ignore the opinions of treating physicians and decide that a claimant is not disabled essentially based on the opinion of one non-examining state evaluator. It is well established that the opinion, diagnosis, and medical evidence of a Plaintiff’s treating physician should be accorded substantial weight unless “good cause” is shown for not doing so. Bloodworth v. Heckler,703 F.2d 1233 (11th Cir. 1983). Moreover, where the opinions of the claimant’s treating physicians are consistent with the substantial evidence of record that shows a claimant to be disabled and truly, no “good cause” is shown by an ALJ in his opinion to disregard the opinions of the Plaintiff’s treating physicians in light of the medical record established in the case, the ALJ commits error, since reports from non-examining advisors cannot by themselves “trump the findings” from treating physicians, Weiler v. Shalala, 922 F. Supp. 689, (D. Mass. 1996), and cannot by itself constitute substantial evidence that justifies the rejection of the of the opinion of an examining or treating physician, Morgan v. Comm’r of the Soc. Sec.Admina., 169 F.3d 595 (9th Cir. 1999) and in the face of overwhelming record evidence of disability, the findings of a non-examining reviewing doctors are given little weight, See, Lamb v. Bowen, 847, F.2d 698 (11th Cir. 1988), and Simmons v. U.S. R.R. Retirement Board. , 982 F.2d 49, (2d Cir. 1987), A Judge’s decision to give more weight to the opinion of a non-treating, non-examining source than to those of the claimant’s treating doctors in a case is error especially since it does not rest on the substantial evidence of record. See, Rosario v. Apfel, 85 F.Supp.2d 62,(D. Mass. 2000)

  65. Will a claimant’s own physician’s opinions that are consistent with the claimant’s treatment record be given controlling weight in his or her disability case?

    Yes, the claimant’s treating physicians’ opinions in a case should be given controlling weight especially when they are well supported by medically acceptable clinical and laboratory diagnostic techniques, the clinical presentation of the claimant and her testimony and are not inconsistent with other substantial evidence in this case. See, Peterson v. Chater, 983 F. Supp.1410 (M.D. Fla. 1977). Having failed to adequately refute a claimant’s treating physician’s opinions and reports, the findings in those reports are to be accepted as true as a matter of law. MacGregor v. Bowen, 786 F.2d 1050, (11th Cir. 1986) and should be, in light of the fact that the reports of state agency advisors in a case may be unsigned and cannot be used to deny benefits. See, Roman v Apfel, 24 F. Supp. 2d 263 (D. Conn. 1998).

  66. Must an ALJ develop a full and fair record and take into account the claimant’s medical history, absenteeism and pain in assessing a claimant’s residual functional capacity?

    Yes, It has long been the law that an ALJ must scrupulously and consciously probe into, inquire of and explore all relevant facts. Cowart v. Schweiker , 662 F.2d 731, 735 (11th Cir. 1995). An ALJ errs by failing in his duty to consider all impairments in evaluating the claimant’s disability Walker v. Bowen, 826 F.2d 996-1001 (11th Cir. 1987).

  67. Must an ALJ consider ALL of a claimant’s limitations?

    Yes, the ALJ is required to consider and include all of the limitations that are well documented in the record of the claim. An ALJ cannot pick and choose from evidence in the record, but must consider all of the evidence as a whole. Loza v. Apfel, 219 F. 3d 378,394 (5th Cir. 2000) Where an ALJ bases his entire decision on selective excerpts from one medical source while ignoring others, he errs by violating the requirements set forth in Crawford v. Commissioner, 363 F.3d 1155 (11th Cir. 2004) and Ziegler v. Barnhart , 278 F. Supp. 2d 1331 (M.D.Fla.2003), where an ALJ failed to accord the opinion of treating physicians great weight and failed to show good cause to the contrary. As a consequence the ALJ’s decision to deny the claimant benefits was reversed.

  68. Must an ALJ consider or address the side effects of a claimant’s medications on his or her employability?

    Yes, an ALJ must consider both precipitating and aggravating factors of your disability and the type, dosage, effectiveness and side effects of medications. So, you may want to say that “The ALJ failed to properly evaluate and consider both precipitating and aggravating factors of my disability and the type, dosage and effectiveness of my medications.” or “The ALJ erred in failing to take into account the effect of medications on Claimant’s residual functional capacity in determining disability, in violating of SSR 96-7.”

  69. What if the ALJ fails to consider the claimant’s need for medical care and treatment that will occur on a regular basis, or the absences he or she will probably have for this medical care or just being too sick to work a few days or more per month due to sickness?

    The ALJ must consider these things in his or her decision. Many a successful appeal of a judge’s decision denying benefits has asserted that “The ALJ failed to consider the Claimant’s need to accommodate his/her physical and/or mentally related symptoms, need for medical treatment and absences related to symptoms and/or medical treatment.”

  70. What is the claimant’s burden to prove in his or her disability case?

    Once a claimant has proven that the claimant’s impairments render him or her unable to perform past work, the burden shifts to show that there is other gainful work in the national economy which the claimant can perform. Venette v. Apfel, 14 F. Supp 2d 1307, 1312 (S.D. Fla. 1998), citing 20 C.F.R. Section 404.1520(e)(f).

  71. Once a claimant meets the burden, does the burden shift to the government and how does the SSA go about showing that a claimant is not disabled?

    Yes, once the burden shifts, this requires the testimony of a vocational expert, who is either present or testifies at the claimant’s hearing. Testimony from a vocational expert is “highly valued and commonly obtained in order to establish the availability of suitable alternative jobs for disability claimants” Holley v. Chater, 931 F. Supp. 840, 851 (S.D> Fla. 1996), and is in fact necessary to determine whether there is other work available in the national economy that the claimant can do. See Wiloson v. Chater, 76 F. 3d 238, 241 n4. (8th Cir. 1996). Procedurally, once the claimant has proved that she could not return to past relevant work, a Judge may err by failing to produce or consider VE testimony which if adduced at hearing would have supported the proposition that considering the nature of a claimant’s illness, requirements for example, for use of the bathroom and numerous yearly absences, a VE would have likely conclude that a claimant was probably unable to work at all at the SGA level. See.,Caviness v. Apfel, 4F. Supp2d 813 at 825 (S.D. Ind. 1998) See also; Moore v. Halter, 168 F. Supp. 2d 1137, (N.D. Cal. 2001) (Where the court found that the ALJ erred in failing to properly consider the claimant’s limitation of requiring 10 restroom trips in a workday and to discuss these details with a vocational expert).

  72. What if a claimant’s pain or depression prevents a claimant from concentrating on simple one or two step tasks throughout the day, is that something the ALJ has to consider if a claimant testifies about it or his or her doctors have written about this and those reports are in the record?

    The ALJ must take into consideration any deficits a claimant may have in memory, focus, concentration, persistence or pace. If a claimant does testify about this or if the physicians have written about this and it is part of your record, he or she would probably allege on appeal that “The ALJ erred in failing to take into account my limitations in the ability to maintain attention, concentration and pace in assessing my residual functional capacity or through the questioning of the vocational expert.”

  73. If a claimant suffers from Obesity and it is not his or her primary disabling condition, must the ALJ consider the effects of obesity on residual physical capacity in determining if the claimant is disabled or not?

    An ALJ must consider obesity and its overall impact on a claimant’s ability to work. If the ALJ failed to take obesity into consideration in his denial of benefits, the ALJ may be reversed if it is found that “The ALJ failed to take into consideration the Claimant’s obesity and its effects on the Claimants Residual Functional Capacity.” Otherwise, if Obesity is the primary cause of a claimant not being able to engage in SGA, then his or her benefits are rightfully denied by effect of law.

  74. What if a claimant has fibromyalgia; what must a judge or physician find if he or she is to be eligible for SSI or Disability benefits?

    Fibromyalgia is a disease that interferes with a claimant’s functional capacity. A rheumatologist is the best type of doctor for the claimant to see and with whom to treat. A good doctor can diagnose, document and relate the nature, frequency and length of contact with the patient and determine whether the claimant meets the criteria of the American College of Rheumatology for the diagnosis of fibromyalgia. Such a physician would have to opine that the patient’s impairments have lasted or can be expected to last at least twelve months and clinically identify and document all of the patient’s symptoms like multiple tender points, non-restorative sleep, chronic fatigue, morning stiffness, muscle weakness, subjective swelling, numbness and tingling, breathlessness, anxiety, and depression.

    A good rheumatologist can also opine that certain emotional factors contribute to the severity of the patient’s symptoms and functional limitations inclusive of the spine, chest, legs, hands and arms and document the nature, frequency, and severity of the patient’s pain and also identify factors that would precipitate pain. A good rheumatological physician can also opine that the patient’s impairments (physical impairments plus any emotional impairments) are reasonably consistent with the symptoms and functional limitations described in his or her evaluation and determine how long during a typical workday the patient’s experience of pain or other symptoms would be severe enough to occasionally, frequently, or constantly interfere with attention and concentration needed to perform even simple work tasks and to what degree the patient would be able to tolerate work stress, and identify the side effects of the claimant’s medications that may have implications for working, e.g., dizziness, drowsiness, stomach upset, etc.

    As a result of the patient’s impairments, a rheumatologist or other physician can estimate the patient’s functional limitations if the patient were placed in a competitive work situation, for example for how long the patient could walk without rest or severe pain; sit at one time, e.g., before needing to get up, etc.; or stand at one time, e.g., before needing to sit down, walk around, etc., in an 8 hour workday (with normal breaks); or if the patient would need to include periods of walking around during an 8 hour work day, and how long or frequently this would happen each time or if the patient would need a job which permits shifting positions at will from sitting, standing or walking, and that while engaging in occasional standing/walking, the patient would need to takeunscheduled breaks during an 8-hour workday, and how often this would happen and the patient would have to rest before returning to work.

  75. What is the American College of Rheumatology’s definition of Fibromyalgia?

    According to the definition of Fibromyalgia by the American College of Rheumatology (ACR), Fibromyalgia is defined as a disorder in patients as “widespread pain in all four quadrants of the body for a minimum duration of 3 months and at least 11 of the 18 specified tender points which cluster around the neck, shoulder, chest, hip, knee and elbow regions with development of other clinically documented over time”. Possible symptoms include (IBS, chronic headaches, TMJ, dysfunction, sleep disorder, severe fatigue, and cognitive dysfunction).

    With reference to the American College of Rheumatology standards for the diagnosis of fibromyalgia as under the ACR guidelines, are as follows:

    1. The patient had a history of widespread pain which includes pain on the right and left sides of the body.
    2. The patient had pain above and below the waist?
    3. The patient had pain (meaning a force of 4 kilograms on the tender point is “painful” and not simply “tender”) in at least 11 of 18 tender point sites on digital palpation.
    4. The patient’s pain had been documented as “tender” and the medications the patient is on for fibromyalgia would reasonably be expected to reduce “pain” in these tender areas.
    5. It was thought that should the patient should not be taken be taken off said medications.
    6. The intended effects of the medication or side effects would interfere with the patient’s ability to maintain attention, concentration or focus for 8 hours of an 8 hour day.
  76. Can a minor be considered disabled?

    Under section 1614(a)(3)(C) of the Social Security Act, an individual under the age of 18 shall be considered disabled if she has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. Notwithstanding the above, no individual under the age of 18 who engages in substantial gainful activity may be considered to be disabled.

  77. Are a disabled child’s SSI benefits payable prior to the date his or her application is filed?

    Supplemental security income is not payable prior to the month following the month in which the application was filed (20 CFR 416.335).

  78. Under what authority can an ALJ find a child disabled?

    Under the authority of the Social Security Act, the Social Security Administration has established a three-step sequential evaluation process to determine whether an individual under the age of 18 is disabled (20 CFR 416.924(a)).

  79. What are the steps of analyses involved in determining whether a child is disabled?

    At step one, the ALJ must determine whether the claimant is engaging in substantial gainful activity. Substantial gainful activity is defined as work activity that is both substantial and gainful. An individual is engaging in substantial gainful activity is she is doing significant physical or mental activities for pay or profit (20 CFR 416.972). Generally, if an individual has earnings from employment or self-employment above a specific level set out in the regulations, it is presumed that she has demonstrated the ability to engage in substantial gainful activity (20 CFR 416.974 and 416.975). If the claimant is performing substantial gainful work, she is not disabled regardless of her medical condition(s) (20 CFR 416.924(b)). If the claimant is not engaging in substantial gainful activity, the analysis proceeds to the second step.

  80. What is step two in determining whether a child is disabled?

    At step two, the ALJ must determine whether the claimant has a medically determinable “severe” impairment or a combination of impairments that is “severe”. For an individual who has not attained age 18, a medically determinable impairment or combination of impairments is not severe if it is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations. If the claimant does not have a medically determinable severe impairment(s), she is not disabled (20 CFR 416.924(c)). If the claimant has a severe impairment(s), the analysis proceeds to the third step.

  81. What does step three entail?

    At step three, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or medically equals the criteria of a listing, or that functionally equals the listings.

  82. What must the ALJ consider?

    In making this determination, the ALJ must consider the combined effect of all medically determinable impairments, even those that are not severe (20 CFR 416.923, 416.924a(b)(4), and 416.926a(a) and (c)). If the claimant has an impairment or combination of impairments that meets, medically equals or functionally equals the listings, and it has lasted or is expected to last for a continuous period of at least 12 months, she is presumed to be disabled. If not, the claimant is not disabled (20 CFR 416.924(d)).

  83. What is the purpose of determining the “Six Domains” and functionally equaling a listing?

    In determining whether an impairment or combination of impairments functionally equals the listings, the ALJ must assess the claimant’s functioning in terms of six domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for his or herself; and (6) health and physical well-being.

  84. What does an ALJ have to do to make this assessment?

    In making this assessment, the ALJ must compare how appropriately, effectively and independently the claimant performs activities compared to the performance of other children of the same age who do not have impairments. To functionally equal the listings, the claimant’s impairment or combination of impairments must result in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain (20 CFR 416.926a(d)).

  85. What else does an ALJ have to consider?

    In assessing whether the claimant has “marked” or “extreme” limitations, the ALJ must consider the functional limitations from all medically determinable impairments, including any impairments that are not severe (20 CFR 416.926a(a)). The ALJ must consider the interactive and cumulative effects of the claimant’s impairment or multiple impairments in any affected domain (20 CFR 416.926a(c)).

  86. What do you mean by a child’s “marked” limitation?

    Social Security regulation 20 CFR 416.926a(e)(2) explains that a child has a “marked limitation” in a domain when her impairment(s) “interferes seriously) with the ability to independently initiate, sustain, or complete activities. A child’s day-to-day functioning may be seriously limited when the impairment(s) limits only one activity or when the interactive and cumulative effects of the impairment(s) limit several activities. The regulations also explain that a “marked” limitation also means:

    1. A limitation that is “more than moderate” but “less than extreme”.
    2. The equivalent of functioning that would be expected on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.
    3. A valid score that is two standard deviations or more below the mean, but less than three standard deviations, on a comprehensive standardized test designed to measure ability or functioning in that domain, and her day-to-day functioning in domain-related activities is consistent with that score.
    4. For the domain of health and physical well-being, frequent episodes of illnesses because of the impairment(s) or frequent exacerbations of the impairment(s) that results in significant, documented symptoms or signs that occur: (a) on an average of 3 times a year, or once every 4 months, each lasting 2 weeks or more; (b) more often than 3 times a year or once every 4 months, but not lasting for 2 weeks; or (c) less often than an average of 3 times a year or once every 4 months but lasting longer than 2 weeks, if the overall effect (based on the length of the episode(s) or its frequency) is equivalent in severity.
  87. What is an “extreme” limitation?

    Social Security regulation 20 CFR 416.926a(e)(3) explains that a child has an “extreme” limitation in a domain when her impairment(s) interferes “very seriously” with her ability to independently initiate, sustain, or complete activities. A child’s day-to-day functioning may be very seriously limited when her impairment(s) limits only one activity or when the interactive and cumulative effects of her impairment(s) limit several activities. The regulations also explain that an “extreme” limitation also means:

    1. A limitation that is “more than marked”.
    2. The equivalent of functioning that would be expected on standardized testing with scores that are at least three standard deviations below the mean.
    3. A valid score that is three standard deviations or more below the mean on a comprehensive standardized test designed to measure ability or functioning in that domain, and her day-to-day functioning in domain-related activities is consistent with that score.
    4. For the domain of health and physical well-being, episodes of illness or exacerbations that result in significant, documented symptoms or signs substantially in excess of the requirements for showing a “marked” limitation.
  88. What must an ALJ do to determine the degree of limitations in each of the “Six Functional Domains”?

    In determining the degree of limitation in each of the six functional domains the ALJ has to consider all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 416.929, SSRs 96-4p and 96-7p. The ALJ has to also consider the opinion evidence in accordance with 20 CFR 416.927 and SSRs 96-2p, 96-5, 96-6p and 06-3p.

  89. How does an ALJ evaluate a child claimant’s symptoms?

    In considering a claimant’s symptoms, the ALJ must follow a two-step process in which it must first be determined whether there is an underlying medically determinable physical or mental impairment(s)—i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques—that could reasonably be expected to produce the claimant’s pain or other symptoms.

    Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant’s pain or other symptoms has been shown, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant’s symptoms to determine the extent to which they limit the claimant’s ability to do basic work activities. For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the statements based on a consideration of the entire case record.

    For example, after considering the evidence of record, the ALJ finds that a claimant’s medically determinable impairments could reasonably be expected to produce the alleged symptoms; however, the statements concerning the intensity, persistence and limiting effects of the claimant’s symptoms are no credible to the extent that they are inconsistent with finding that the claimant does not have an impairment or combination of impairments that functionally equals a listing.

    For example, if a child were able to attend school in a regular classroom setting and is described as an average student and was participating in physical education and the evidence does not document any restrictions placed on the claimant’s ability to function by any treating or examining physician of record, in terms of the six domains of function the ALJ would probably find the limitations caused by the claimant’s impairments to be minimal.

  90. What is the first of the six “Functional Domains”?

    The first domain is “Acquiring and using information”. This domain considers how well a child is able to acquire or learn information, and how well a child uses the information she has learned (20 CFR 416.926a(g)).

    The regulations provide that a preschooler (i.e., a child age 3 to attainment of age 6) without an impairment should begin to learn and use the skills that will help her to read and write and do arithmetic when she is older. For example, listening to stories, rhyming words, and matching letters are skills needed for learning to read. Counting, sorting shapes, and building with blocks are skills needed to learn math. Painting, coloring, copying shapes, and using scissors are some of the skills needed in learning to write. Using words to ask questions, give answers, follow directions, describe things, explain what she means, and tell stories allows the child to acquire and share knowledge and experience of the world around her. All of these are called “readiness skills” and the child should have them by the time she beings first grade (20 CFR 416.926a(g)(2)(iii)).

    The regulations provide that a school-age child (i.e., a child age 6 to the attainment of age 12) without an impairment should be able to learn to read, write, and do math, and discuss history and science. The child will need to use these skills in academic situations to demonstrate what she has learned by reading about various subjects and producing oral and written projects, solving mathematical problems, taking achievement tests, doing group work, and entering into class discussions. The child will also need to use these skills in daily living situations at home and in the community (e.g., reading street signs, telling times, and making change). The child should be able to use increasingly complex language (vocabulary and grammar) to share information and ideas with individuals or groups, by asking questions and expressing her own ideas, and by understanding and responding to the opinions of others (20 CFR 416.926a(g)(2)(iv)).

    Social Security regulation 20 CFR 416.926a(g)(3) sets forth some examples of limited functioning in this domain that children of different ages might have. The examples do not apply to a child of a particular age; rather, they cover a range of ages and developmental periods. In addition, the examples do not necessarily describe “marked” or “extreme” limitation in the domain. Some examples of difficulty children could have in acquiring and using information are: (i) does not understand words about space, size, or time (e.g., in/under, big/little, morning/night); (ii) cannot rhyme words or the sounds in words; (iii) has difficulty recalling important things learned in school yesterday; (iv) has difficulty solving mathematics questions or computing arithmetic answers; or (v) talks only in short, simple sentences, and has difficulty explaining what she means.

    If the claimant has no limitation in acquiring and using information, the claimant would normally be in a regular classroom setting with no difficulty shown.

  91. What is the second of the six “Functional Domains”?

    The second domain is “Attending and completing tasks”. This domain considers how well a child is able to focus and maintain attention, and how well she is able to begin, carry through, and finish activities, including the pace at which she performs activities and the ease of changing activities (20 CFR 416.926a(h)).

    The regulations provide that a preschooler without an impairment should be able to pay attention when she is spoken to directly, sustain attention to her play and learning activities, and concentrate on activities like putting puzzles together or completing art projects. The child should also be able to focus long enough to do many more things independently, such as gathering clothes and dressing, feeding, or putting away toys. The child should usually be able to wait her turn and to change her activity when a caregiver or teacher says it is time to do something else (20 CFR 416.926a(h)(2)(iii)).

    The regulations provide that a school-age child without an impairment should be able to focus her attention in a variety of situations in order to follow directions, remember and organize school materials, and complete classroom and homework assignments. The child should be able to concentrate on details and not make careless mistakes in her work (beyond what would be expected in other children of the same age who do not have impairments). The child should be able to change activities or routines without distraction, and stay on task and in place when appropriate. The child should be able to sustain attention well enough to participate in group sports, read by herself, and complete family chores. The child should also be able to complete a transition task (e.g., be ready for the school bus, change clothes after gym, change classrooms) without extra reminders and accommodation (20 CFR 416.926a(h)(2)(iv)).

    Social Security regulation 20 CFR 416.926a(h)(3) sets forth some examples of limited functioning in this domain that children of different ages might have. The examples do not apply to a child of a particular age; rather, they cover a range of ages and developmental periods. In addition, the examples do not necessarily describe “marked” or “extreme” limitation in the domain. Some examples of difficulty children could have in attending and completing tasks are: (i) is easily startled, distracted, or over-reactive to sounds, sights, movements, or touch; (ii) is slow to focus on, or fails to complete, activities of interest (e.g., games or art projects); (iii) repeatedly becomes side-tracked from activities or frequently interrupts others; (iv) is easily frustrated and gives up on tasks, including ones she is capable of completing; or (v) requires extra supervision to remain engaged in an activity.

    If the claimant has no limitation in attending and completing tasks, the evidence of record would not show any evidence of deficit.

  92. What is the third of the six “Functional Domains”?

    The third domain is “Interacting and relating with others”. This domain considers how well a child is able to initiate and sustain emotional connections with others, develop and use the language of the community, cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others (20 CFR 416.926a(i)).

    The regulations provide that a preschooler without an impairment should be able to socialize with children as well as adults. The child should begin to prefer playmates and start developing friendships with children who are her own age. The child should be able to use words instead of actions to express herself, and also be better able to share, show affection, and offer to help. The child should be able to relate to caregivers with increasing independence, choose her own friends, and play cooperatively with other children, one-at-a-time or in a group, without continual adult supervision. The child should be able to initiate and participate in conversations, using increasingly complex vocabulary and grammar, and speaking clearly enough that both familiar and unfamiliar listeners can understand what she says most of the time (20CFR 416.926a(i)(2)(iii)).

    The regulations provide that a school-age child without an impairment should be developing more lasting friendships with children who are of the same age. The child should begin to understand how to work in groups to create projects and solve problems. The child should have an increasing ability to understand another’s point of view and to tolerate differences. The child should be well able to talk to people of all ages, to share ideas, tell stories, and to speak in a manner that both familiar and unfamiliar listeners can readily understand (20 CFR 416.926a(i)(2)(iv)).

    Social Security regulation 20 CFR 416.926a(i)(3) sets forth some examples of limited functioning in this domain that children of different ages might have. The examples do not apply to a child of a particular age, rather, they cover a range of ages and developmental periods. In addition, the examples do not necessarily describe “marked” or “extreme” limitation in the domain. Some examples of difficulty that children could have in interacting and relating with others are: (i) does not reach out to picked up and held by a caregiver; (ii) has no close friends or all friends are older or younger than the child; (iii) avoids or withdraws from people he knows, or is overly anxious or fearful of meeting new people; (iv) has difficulty playing games or sports with rules; (v) has difficulty communicating with others (e.g., in using verbal and nonverbal skills to express herself, in carrying on a conversation, or in asking others for assistance); or (vi) has difficulty speaking intelligibly or with adequate fluency.

    A claimant would have no limitation in interacting and relating with others if the evidence does not show any allegation of or objective evidence of any speech or communication disorder.

  93. What is the fourth of the six “Functional Domains”?

    The fourth domain is “Moving about and manipulating objects”. This domain considers how well a child is able to move her body from one place to another and how a child moves and manipulates objects. These are called gross and fine motor skills (20 CFR 416.926a(j)).

    The regulations provide that a preschooler without an impairment should be able to walk and run with ease. The child’s gross motor skills should let her climb stairs and playground equipment with little supervision, and let her play more independently (e.g., swing by herself and possibly start learning to ride a tricycle). The child’s fine motor skills should also be developing. The child should be able to complete puzzles easily, string beads, and build with an assortment of blocks. The child should be showing increasing control of crayons, markers, and small pieces in board games, and should be able to cut with scissors independently and manipulate buttons and other fasteners (20 CFR 416.926a(j)(2)(iii)).

    The regulations provide that a school-age child without an impairment should have gross motor skills that let her move at an efficient pace at school, home, and throughout the neighborhood. The child’s increasing strength and coordination should expand her ability to enjoy a variety of physical activities, such as running and jumping, and throwing, kicking, catching, and hitting balls in informal play or organized sports. The child’s development of fine motor skills should enable her to do things like use many kitchen and household tools independently, use scissors, and write (20 CFR 416.926a(j)(2)(iv)).

    Social Security regulation 20 CFR 416.926a(j)(3) sets forth some examples of limited functioning in this domain that children of different ages might have. The examples do not apply to a child of a particular age; rather, they cover a range of ages and developmental periods. In addition, the examples do not necessarily describe “marked” or “extreme” limitation in the domain. Some examples of difficulty children could have in moving about and manipulating objects are: (i) difficulty with motor activities (e.g., stumbling, unintentionally dropping things) because of muscle weakness, joint stiffness, or sensory loss (e.g., spasticity, hypotonia, neuropathy, or paresthesia); (ii) difficulty with balance or climbing up and down stairs, or jerky or disorganized locomotion; (iii) difficulty coordinating gross motor movements (e.g., bending, kneeling, crawling, running, jumping rope, or riding a bike); (iv) difficulty with sequencing hand or finger movements; (v) difficulty with fine motor movement (e.g., gripping or grasping objects); or (vi) poor eye-hand coordination when using a pencil or scissors.

    A claimant has no limitation in moving about and manipulating objects if the examination of the claimant had not shown any neurological or orthopedic deficits, or that a claimant participates in physical education at school and physical education was one of her favorite classes.

  94. What is the fifth of the six “Functional Domains”?

    The fifth domain is “caring for yourself”. This domain considers how well a child maintains a healthy emotional and physical state, including how well a child satisfies her physical and emotional wants and needs in appropriate ways. This includes how the child copes with stress and changes in the environment and whether the child takes care of her own health, possessions, and living area (20 CFR 416.926a(k)).

    The regulations provide that a preschooler without an impairment should want to take care of many of her own physical needs (e.g., putting on shoes, getting a snack), and also want to try doing some things that she cannot do fully (e.g., tying shoes, climbing on a chair to reach something up high, taking a bath). Early in this age range, it may be easy for the child to agree to do what her caregiver asks. Later, that may be difficult for the child because she wants to do things her way or not at all. These changes usually mean that the child is more confident about her ideas and what she is able to do. The child should also being to understand how to control behaviors that are not good for herself (e.g., crossing the street without an adult) (20 CFR 416.926a(k)(2)(iii)).

    The regulations provide that a school-age child without an impairment should be independent in most day-to-day activities (e.g., dressing and bathing), although she may still need to be reminded sometimes to do these routinely. The child should begin to recognize that she is competent in doing some activities but has difficulty doing others. The child should be able to identify those circumstances when she feels good about herself and when she feels bad. The child should begin to develop understand of what is right and wrong, and what is acceptable and unacceptable behavior. The child should also begin to demonstrate consistent control over her behavior, and be able to avoid behaviors that are unsafe or otherwise not good for her. At this age, the child should begin imitating more of the behavior of adults she knows (20 CFR 416.926a(k)(2)(iv)).

    Social Security regulation 20 CFR 416.926a(k)(3) sets forth some examples of limited functioning in this domain that children of different ages might have. The examples do not apply to a child of a particular age; rather, they cover a range of ages and developmental periods. In addition, the examples do not necessarily describe “marked” or “extreme” limitation in the domain. Some examples of difficulty children could have in caring for themselves are: 9i) continues to place non-nutritive or inedible objects in the mouth; (ii) often uses self-soothing activities that are developmentally regressive (e.g., thumb-sucking or re-chewing food); (iii) does not dress or bathe age-appropriately; (iv) engages in self-injurious behavior (e.g., suicidal thoughts or actions, self-inflicted injury, or refusal to take medication), or ignores safety rules; (v) does not spontaneously pursue enjoyable activities or interests; or (vi) has disturbances in eating or sleeping patterns.

    A claimant would have no limitation in the ability to care for herself if no problems were alleged in this area and no deficits were observed by any treating sources.

  95. What is the last of the six “Functional Domains”?

    The sixth domain is “health and physical well-being”. This domain considers the cumulative physical effects of physical and mental impairments and any associated treatments or therapies on a child’s functioning that were not considered in the evaluation of the child’s ability to move about and manipulate objects (20 CFR 416.929a(l)).

    Social Security regulation 20 CFR416.926a(l)(3) sets forth some examples of limited functioning in this domain that children of any age might have; however the examples do not necessarily describe “marked” or “extreme” limitation in the domain. Some examples of difficulty children could have involving their health and physical well-being are: (i) generalized symptoms, such as weakness, dizziness, agitation (e.g., excitability), lethargy (e.g., fatigue or loss of energy or stamina), or psychomotor retardation because of any impairment(s); (ii) somatic complaints related to an impairment (e.g., seizure or convulsive activity, headaches, incontinence, recurrent infections, allergies, changes in weight or eating habits, stomach discomfort, nausea, headaches or insomnia); (iii) limitations in physical functioning because of treatment (e.g., chemotherapy, multiple surgeries, chelation, pulmonary cleansing, or nebulizer treatments); (iv) exacerbations from an impairment(s) that interfere with physical functioning; or (v) medical fragility requiring intensive medical care to maintain level of health and physical well-being.
    If a claimant has no marked limitation in health and physical well-being, she does not fulfill the domain criteria.

  96. If a child has only one “marked” limitation and no “severe” ones, can she be found to be disabled?

    No. Accordingly, if a claimant does not have any impairment or combination of impairments that result in either “marked” limitations in two domains of functioning or “extreme” limitation in one domain of functioning.

  97. When does a claimant become eligible for Medicaid or Medicare if he or she is disabled?

    In Florida, an SSDI or SSI awardee/recipient will first be entitled to Medicaid benefits for the first two years of disability, thereafter; he or she will be covered by Medicare. For example, John Q. Public was born on 09/11/53 and files his disability claim, (SSDI or SSI) on February 1, 2007. He alleges he was disabled when he had back surgery on February 1, 2006. He treats with Dr. Jones throughout this entire time. On September 19, 2009 Judge Hemshearth renders an opinion that Mr. Public was disabled as alleged on February 1, 2006. Mr. Public’s bills are reimbursable to Mr. Public through Medicaid, a State run program, between February 1, 2006 and February 1, 2008. Thereafter, they are payable or reimbursable through Medicaid, a federally run program. The only exception to the running of this rule would be if Mr. Public reached his full retirement age between February 1, 2006 and February 1, 2008, whereupon he would qualify for Medicare, (usually age 65-67, depending where in the Baby Boom he is) prior to February 1, 2008.

  98. In Florida, If a person is disabled and a Medicare recipient, can a physician legally charge him or her more than Medicare will allow?

    No. Florida Statute §456.056, Treatment of Medicare Beneficiaries, provides in pertinent part of the following:

    (5) Any attempt by a primary physician or a consulting physician to collect from a Medicare Beneficiary any amount of charges for medical services in excess of those authorized under this Section, other than the unmet deductible and the 20 percent of charges that Medicare does not pay, shall be deemed null, void, and of no merit.

  99. So, if a disabled person is in an accident , what should the physician do?

    An injured recipient of Medicare who is in an accident, particularly a motor vehicle accident, may have only a limited amount of PIP benefits, so in writing, a Medicare recipient should have already advised his physician of or that PIP benefits are exhausted. At this time the physician should bill Medicare for their services after PIP benefits run out, otherwise you may be forced into litigation over your bills.

  100. Does Florida law define me as a Medicare recipient?

    Florida Statute §456.056 defines “Beneficiary” as a “beneficiary of health insurance under Title XVIII of the federal Social Security Act.” (42 U.S.C. § 1395 at seq., Health Insurance for Aged and Disabled).

  101. If a Medicare recipient becomes an injured party, and is a Medicare Beneficiary, who is liable for damages including the amounts that treating physicians charged under contract/letters of protection?

    The patient is are liable to his physicians for bills he incurs even though the person who caused you injury may be liable to him to compensate him for those damages. If a patient assigns his claim in writing to a physician, that physician now has claim for the bills the patient incurred to the physician on account of someone else’s negligence but this recovery is a limited one.

    1. Pursuant to Florida Statute §465.056 treating physicians are limited to charges authorized by Medicare as found in 42 U.S.C § 1395 et seq., which provides that physicians may charge only a limited amount above the Medicare-Approved Amount when the physician does not accept assignment of the claim. See 42 U.S.C. § 1395w-4 et seq., 42 C.F.R. §§ 424.56 and 414.48.
    2. Medicare set the limiting charges for years subsequent to 1993 at 115% of the Medicare-Approved amount for unassigned claims. See 42 C.F.R §414.20 and 42 C.F.R. §414.48 (if the physician accepts assignment of the claim, the physician is limited to only 100 percent of the Medicare-Approved Amount.)
    3. Moreover pursuant to 42 U.S.C.A § 1395w-4 (g) no Medicare Beneficiary is liable for payments of any amounts billed for service in excess of the limiting charge.
    4. Physicians who are enrolled with Medicare are bound by agreements not to charge Medicare Beneficiaries individually for services that the individual could have had covered under Medicare. See 42 U.S.C. §1395cc. So, notify upon injury by another party, a Medicare recipient should notify his physician immediately that he is a Medicare recipient so that neither the physician nor the patient is stuck holding the bag for medical services or expecting the patient or the at-fault party to make payments that Medicare would otherwise make.
  102. How can a physician go about legally charging more than Medicare will pay?

    If a physician seeks to have a Medicare Beneficiary held liable as an individual for charges that are in excess of the Medicare-Approved Amounts, the physician must meet the requirements of 42 U.S.C. §1395a that mandates a written contract between the physician and the Medicare Beneficiary must be entered into and signed by both individuals, that the contract set forth the specific services to be provided, that the Medicare Beneficiary will not submit a claim to Medicare, that the Medicare Beneficiary understands he or she will be responsible for payment of services and that Medicare will not reimburse him or her for those services, that the Medicare Beneficiary acknowledges there exists limits under Medicare regulations limiting charges to specific amounts, that the Medicare Beneficiary has the right to services provided by other physicians who would limit their charges to Medicare-Approved Amounts, and that the physician indicate whether or not he or she is a participant in the Medicare program. If no contracts exist that meet these requirements, then your physician may not collect more then the Medicare allotted amounts.

    In addition to the contractual requirements, the physician must notify Medicare by way of affidavit stating that the physician will not submit a claim under Medicare for services provided to the Medicare Beneficiary for at least two years after executing the contract. If the physician fails to abide by the regulations and codes under 42 U.S.C. § 1395 et seq, the physician may be subject to sanctions including fines amounting to two to three times the excessive charge, removal from the Medicare program, refunding of any payments made by the beneficiary that are excessive and assessment of $2,000.00 for each instance of excessive billing.

    It is obvious that Medicare does not want Medicare Beneficiaries to be taken advantage of by physicians circumventing the Beneficiaries right to have the charges limited by Medicare.

  103. So, how would this work out in an accident case involving A Medicare beneficiary?

    For example, in an accident case, it is not unusual for physicians to bill the injured patient in excess of Medicare paid services because there is a financial incentive to do so. if the American Orthopedic Institute billed $35,417.47 over the limiting charges allowed by Medicare for the arthroscopic surgery for knee meniscus tear and related services. Dr. Smith billed $779.44 over the limiting charges allowed by Medicare for a single office visit and Calcium Chiropractic and Rehab billed $2481.28 over the limiting charges allowed by Medicare for chiropractic care and services. Billing amounts for these physicians exceed $46,018.35, which exceeds the Medicare-Approved amounts by at the least $40,000.00. The actual Medicare-Approved amounts equate to only about $7,440.00 for these services. Wow!

  104. How do courts limit these recoveries from physicians in Florida?

    The Second District Court of Appeal addressed the admissibility of charges exceeding Medicare amounts in Cooperative Leasing Inc. and Domer v. Johnson, 872 So.2d 956, (Flat 2d DCA 2004). The facts in Cooperative were that a motorist was injured in an automobile accident and the trial court allowed into evidence bills for all medical expenses. The bills were in excess of benefits paid by Medicare. The Second DCA ruled that the excessive billing was inadmissible because the plaintiff was not liable for the excessive billing pursuant to Title 42 U.S.C. §1395 and precedent. In citing the U.S.C., the Second District determined that the plaintiff’s medical bills were paid by Medicare at the Medicare-approved amounts and that the physician could not recover from the plaintiff personally. The Second District goes on to provide precedent that the plaintiff is entitled to compensation for reasonably valued medical care and found that the Medicare amounts paid to the physicians were customary and reasonable. This is also the basis for approved amounts under 42 U.S.C. §1395w-4. Therefore, any amounts in excess of the Medicare-approved amounts would allow the plaintiff to receive a windfall by recovering “phantom damages”. Id, at 959. In its ruling, the Second District goes on to provide that the difference between what the physicians charged and the Medicare-Approved Amounts are not a collateral source that would be deducted as a set-off post verdict. Id. At 960.

    Moreover, all billing of the above physicians that do not meet the requirements for contracting with a Medicare Beneficiary and/or that are in excess of the Medicare-Approved Amounts are null, void, and of no merit as a matter of law pursuant to Florida Statute §456.056 It is of the utmost importance, therefore that if a Medicare recipient is involved in any accident that he let his treating physician know he is disabled and on Medicare, so that he does not create any outstanding bills or bad-will by failing to tell you the physician up front to bill Medicare.

  105. Residual Functional Capacity Forms

    Click the links below to view and Download Residual Functional capacity Forms.