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1. 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. Such an individual would be considered unemployed in the competitive economy so that jobs like ticket taker, parking lot attendant, gate guard, eyeglass assembler, or even a surveillance system monitor job would not be able to be performed.
2. 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, involving simple one or two step repetitive tasks, is such a person disabled?
Yes, such a claimant has been under a disability, as defined in the Social Security Act.
3. 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. This sort of case is the most easy to prove as long as all the proper medical or psychiatric records are gathered and filed with the Social Security Administrator.
4. 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. Again IQ tests, Psychiatric Hospital, and treatment records must be timely filed to prove a case involving affective disorder.
5. 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. Even though jobs may actually exist for such a claimant, if the job base is sufficiently eroded (20% or more generally), that claimant would be disabled.
6. 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. Full time employment even at the light/ sedentary level still requires someone to work 36 hours or more per week. Anything less is not full time employment.
7. 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 up to six hours of an eight hour day, would that person be disabled?
Probably. It would depend on that person’s age, work experience, and transferability of job skills. The older and less literate or educated and skilled a claimant is, the more likely he or she will be found to be disabled.
8. 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/her 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.
9. 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.
10. 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?
11. 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. 404.1560I, 404.1566, 416.9608, and 416.966), is he or she considered disabled?
12. What if there may be some job out there like the proverbial store 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 ALJ must 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 his/her impairments on his/her past relevant work to determine whether the claimant could still do that work, an ALJ’s decision to deny the claimant benefits because he/she could return to past relevant work and would not be supported by substantial evidence.
13. 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?
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).
14. 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 his/her absences due to his/her nephritic condition, but also due to pain and his/her need to use the restroom frequently, benefits may well be rewarded.
15. 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).
16. Can an ALJ just ignore the findings and opinion of a treating physician?
16a. 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). 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)
17. 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).
18. 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).
19. 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.
20. 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.
21. 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.”
22. What is the claimant’s burden to prove in his or her disability case?
Even though the SSA is required to obtain the claimants medical records and prepare the file the claimant must present objective evidence by way of testing, diagnosis or treatment that establishes a serious medical condition that prevents him/her from full time work. 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).
23. 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).
23a. 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?
Yes. The inability to focus or concentrate for less than ten minutes per each work hour would render one unemployable. 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.”