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The Advocate Study Guide

Lesson Eight

CASE ARGUMENTS – FINE-TUNING

Primary Objective of the Formal Argument

The primary duty of a Disability Advocate is to create the most effective Formal Argument possible given the case evidence. To do this, you must use all the facts that you collect to formulate a winning strategy.

Start with the Seven Categories of Fact

You must decide during the Initial Interview and Case Assessment if the case is worth accepting. What you learn in these early stages often figures prominently when you formulate your final argument. In fact, it may end up determining the entire outcome of the case! Here are the seven most important categories of fact which have the greatest impact on case outcomes:

1. Claimant age

2. Claimant educational level

3. Claimant's past work history

4. Claimant's transferable skills

5. Debilitating effects of the disease

6. Specific medical findings in the case

7. Claimant's perception of and response to his/her condition

1. Age Criteria: Several internal SSA policies allow clients with certain characteristics to enjoy a more liberal interpretation of their disabling condition. One of the most important of these is age. If the claimant is under age eighteen, SSA uses the more liberal childhood medical listings and age-appropriate-activity criteria for disability. If the claimant is between the ages of nineteen to forty-nine, disability requirements are more stringent. In order to win the case for a person in this age range, you must shoot for the moon - always argue for a less than sedentary RFC. If the claimant is between the ages of fifty to sixty-four, the criteria ease once again. After age fifty you will not always have to lower the claimant’s RFC to less than sedentary; the necessary RFC will vary with the facts of the case.

How do you know going in which RFC level will be necessary for an allowance decision? The most common way is to check the Vocational Rules Table.

Note: There is a copy of the Vocational Rules Table in the Program Syllabus. Click on the link marked "The Grid". The Voc Rules Table indicates how low the RFC must go in a given case for an allowance decision based on the claimant's age, education, skill level and remaining skill transferability.

For example: If your client is fifty-five, has eleven years of education and no transferable skills, Voc Rule 201.02 will direct a decision of disabled on an RFC of sedentary work. Of course, a less than sedentary RFC will get the same result.

The Vocational Rule approach is nice, but Disability Associates uses an easier way to determine which RFC will result in an allowance.

· If the claimant is nineteen to forty-nine, always argue for a less than sedentary RFC, regardless of any other factors.

· If the claimant is fifty to fifty-four, argue for at least an RFC of sedentary. You may want to go to less than sedentary, depending upon the claimant’s education and transferable skills.

· If the claimant is fifty-five to sixty-four, a sedentary RFC will usually result in an allowance unless the claimant is highly educated and retains a high level of transferable skills. If this is the case, argue for a (guest what?) less than sedentary RFC.

Regardless of the claimant’s age, always argue for the lowest possible RFC that the medical evidence supports.

Note: Highly educated claimants who also have a number of transferable skills will often be denied. To avoid denial, look for any negative mental effects resulting from the claimant’s physical impairments.

For example, a person with a severe back disorder may suffer from a great deal of pain, which can interfere with his/her ability to learn, remember or concentrate. A reduction in any of these three capabilities lowers the claimant’s ability to transfer his/her skills to other work.

2. Educational Criteria: Education is also an important factor. The less education the claimant has, the less likely he/she is to adjust to other less demanding work.

3. Work History: Claimants with a history of physically demanding work with less than thirty days’ training have the most difficult time adjusting to other work. Add an advanced age and little education with few transferable skills, and you have a person with poor adaptability to other work.

4. Transferable Skills: These are the skills the claimant can use despite impairment-induced limitations.

For example, your client, Dorothy, worked as an auditor. An auditor must have many skills in math, reading and data organization in order to do the job. These skills transfer to other types of work. Dorothy will be denied benefits unless she has secondary impairments that further limit her ability to use these skills.

5. Debilitating effects of the disease: SSA defines a severe impairment as one that causes significant physical or mental restrictions. The more intense the disease state, the more likely it is to result in serious physical and/or mental limitations. Pay close attention to the disease states suffered by your client, making sure that you take into account every limitation they cause.

6. Medical Findings: The stronger the medical evidence (signs) supporting the claimant’s diagnosis and limitations, the more likely you will win the case. For maximum impact, match the impairment with its supporting medical evidence in your Formal Argument.

7. Claimant’s Perception: If a claimant believes he/she is truly unable to work, he/she is a much stronger client for your service! You see, those who are truly disabled almost always act the part. If the disabled person states that he cannot walk without pain, he probably will manifest this limitation even in the privacy of his own home. This kind of consistency can really help you win the case.

The client’s consistently limited behavior also allows you to put evidence into the record regarding the impairment’s impact on his/her daily functionality using the Activities of Daily Living (ADL) format. ADLs, produced either by you or family members, can be written freehand or on one of SSA’s descriptive ADL forms. ADLs, if consistent with both the claimant’s allegations and the medical evidence, are useful in supporting a lowered RFC. As you become experienced as an Advocate, you’ll realize just how incredibly powerful ADL evidence can be!

You can argue for any RFC that you feel is appropriate and will result in an allowance. However, you must provide valid evidence to support any symptoms that are causing limitation. This is easier if the case is well documented and the claimant lives his/her RFC. The claimant must not exceed (especially in public!) the activity level he/she claims to be limited to. If your client inadvertently tells SSA that he plans to paint his barn this weekend despite his alleged inability to do sedentary work, SSA will definitely assign him a higher RFC and his case will be denied based on this major inconsistency.

Always fully exploit the seven factors listed above and use them in your formal argument. These case criteria are extremely important to SSA, so make them important to you! Properly emphasized in your Formal Arguments, these seven criteria can significantly increase the number of cases you win.

Formulating a Case Strategy

Customize your case strategy based on the facts. You should, for example, develop a different approach for a case involving a thirty-eight-year old than a sixty-year-old because SSA views them differently. If you didn’t know that SSA’s disability criteria are slightly tougher for the younger person, you might approach both cases in the same way, and it could cost the younger claimant his/her benefits.

Pay attention to the details! No two cases are alike. Pay close attention to case details that might be crucial to designing a winning strategy. For example, with individuals under forty-nine years old, the evidence could indicate a severe impairment without necessarily supporting a total disability decision. In this common situation, you can improve your argument’s effectiveness by citing subtle symptoms that are documented in the claimant’s evidence of record. Here is a simple formula that demonstrates my point:

Limitations = Signs + Symptoms x
Severity

The above formula reads: Limitations equal signs plus symptoms x severity.

That is, “Limitation is defined by Impairment Severity which equals the sum of Signs plus Symptoms where Signs are defined as medical findings and Symptoms are defined as physical manifestations of the disease. Limitation leads to Inability to Perform Work which leads to an Allowance decision.”

The more definitive the medical sign, the greater the impairment severity. The more pronounced the client’s symptom, the greater the impairment severity. The greater the impairment severity, the more convincing is the argument for the alleged limitation. The more severe the limitation, the more likely it will restrict ability to perform work. Inability to perform work is the key to allowance.

Some Tips for Designing Winning Case Strategies

Disability Associates has learned many tricks of the trade over our years of dealing with SSA. Here are some of the things that we have used to create winning strategies:

· Pain can lower RFC

· Collateral sources can provide valuable documentation

· Don’t forget the loose nexus requirement!

· Compromises can win cases

· Close period cases meet less resistance

· Subjective strategies can put you over the top

Pain as an RFC Issue

Pain is one of the most powerful criteria you’ll ever use as a Disability Advocate. Think of it as live ammunition in any case where the claimant alleges severe pain. Pain criteria can significantly lower RFCs.

Years ago, a number of claimants challenged SSA in court because they felt their claims had not been evaluated fairly. They argued that SSA ignored the effects of pain in creating their RFCs, which resulted in wrongful denial of benefits. The judge agreed, and these applicants were awarded all back benefits. As a result, SSA now considers pain as a significant limiting factor in all cases where it is alleged and documented.

The key question in this landmark case was whether or not SSA had given proper weight to pain’s effects in determining a person's ability to adjust to less demanding work. Not only were many people awarded benefits who had previously been denied, but SSA had to rewrite much of its adjudicative policy concerning pain to assure a consistent approach in future cases. SSA still struggles to effectively address the pain issue, which has grown into the most powerful, but hardest to substantiate, subjective symptom.

The Six Pain Factors: In order for SSA to seriously consider a pain allegation, it must be thoroughly documented. We have found that there are six basic factors that determine the weight SSA gives to a complaint of pain. The better you document a pain allegation using these six factors, the more likely it is that SSA will take pain into consideration when formulating their RFC. To properly document pain, you need the following information:

1. Description of the pain:

a. Location or site of the pain

b. Quality of the pain (i.e., sharp, dull, arching, radiating, etc.)

c. Duration of pain – when it occurs; how long it lasts

d. Intensity - Degree of sign/symptom experienced by the claimant.

2. Causation and/or aggravation of the pain - standing, sitting, bending, etc.

3. Relief of the pain - sitting, lying down, extremity elevation, etc.

4. Physical limitations caused by the pain

5. Pain medication side effects that cause additional symptoms, thus further limiting
the claimant’s RFC

6. Enhancement or additive effect of pain on other types of limitations as part of the
RFC justification

Example: Ed has a bad knee with major damage visible on x-rays (signs!). SSA assigns a light work RFC because it’s just a bad knee. You discover that, as a result of the severe knee pain that he suffers his RFC should be reduced to sedentary. You’ve just improved Ed’s chances of winning!

In order to win a case using pain, be sure that the claimant's Activities of Daily Living (ADL) substantiate both the medical findings and all alleged limitations.

Example: Linda states that she is unable to bend at the waste due to pain, and you have found medical evidence to support this alleged restriction. If she then states on her ADL form that she cuts wood for about a half hour every day, this inconsistency will completely destroy her credibility regarding her bending restriction allegation. You won’t be able to use this alleged bending limitation as ammunition for lowering Linda’s RFC.

Note: Use the pain issue whenever possible as a means of further reducing a claimant's RFC. Remember, pain limitations may be both physical and/or mental in their manifestation.

Collateral Sources

A credible collateral source of evidence is anyone who has consistently observed your client’s limitations. You can use collateral sources to strengthen allegations of both physical and mental impairments. This is especially useful in cases where the claimant is less than forty-nine years old and needs more documented impairments to further reduce his/her RFC. Credible collateral sources include physical therapists, counselors, care givers, and/or family members or friends who have regular contact with the claimant. A medical professional who has worked directly with the claimant is even better. Use as many collateral sources as you wish to support any limitation alleged by the claimant as long as all impairments are supported by medical evidence.

Loose Nexus

Within any disability argument there must be a direct relationship between the impairment, the evidence and the alleged limitations. This three way relationship is called a loose nexus. The Social Security term loose nexus defines the logical relationship between a disease, its symptom and the limitations caused by the symptom. If the claimant’s disorder is not supported by the evidence (signs) and/or it demonstrates symptoms that do not fit the disease, there may be no loose nexus. If there’s no loose nexus, SSA will not accept the limitation which will result in a denial of the case. By pointing out the logical relationships in your argument you're able to present SSA with a more common-sense based argument supported by the evidence.

Compromises can Win Cases

Sometimes an Administrative Law Judge may be hostile to a disability applicant and reluctant to award benefits. One way to reduce the ALJ's reluctance, especially in a marginally convincing case, is to offer a compromise. Two effective compromises the astute Disability Advocate can use are:

1. The Diary Date Compromise

2. The Onset Date Compromise

1. The Diary Date Compromise: A little-known but effective method of fine-tuning your argument is the use of a diary date - the date upon which SSA will review the case of someone receiving benefits to determine if the disability continues. This date is also referred to as the medical re-examination diary.

In this strategy, the Advocate asks for an allowance now but a shorter time interval until the re-examination diary date – say, three years instead of seven. If the claimant is medically improved at diary, he/she can be removed from benefits. If necessary, the Advocate can go even further and suggest a two year diary in order to reduce the ALJ’s reluctance to award benefits.

The ALJ may go for this reduced re-examination diary because it means the case will be re-evaluated sooner. This means that the claimant will receive benefits for a shorter period of time before again being reviewed by SSA. This gives SSA the opportunity to remove the claimant from the rolls much faster than usual, lowering the ALJ's reluctance to allow. This compromise also shows that the Advocate is concerned about the costs of entitlement and is willing to do his/her part to make use the disability system responsibly.

The shortened diary strategy works best on those under forty-nine.

2. Onset Compromise: Another effective approach to lowering an ALJ's reluctance to allow is the Onset Compromise. In this technique, the Advocate bargains for a different onset date than the one originally alleged.

Example: Your client, Allen, alleges that he became disabled on 1/1/09. The case is at the ALJ level and the Judge is hesitant to award benefits. In order to get an allowance, you feel you need to demonstrate to the ALJ that you and Allen are willing to compromise. You and Allen talk it over and agree to suggest a new onset date of 6/1/09, which will slightly lower Allan’s overall back benefit award. This reduces the ALJ's reluctance, and she allows the case.

Do not use this approach if there is strong medical evidence supporting the original onset date. Keep in mind that this approach will reduce your fee, which is based on your client’s back benefits.

Closed Periods

A little-known way of reducing ALJ resistance to awarding benefits is the use of the closed period strategy. A “closed period” case has definite beginning and ending dates of impairment. The individual is applying for benefits on a medical condition that has resolved itself after lasting for at least twelve months.

Example: Alice suffered a serious eye injury in an industrial accident on 1/1/10. She became unable to perform work because of blurred vision and pain. After the accident, she underwent several eye surgeries. As a result, she fully recovered, regaining her vision as a result of the last operation on 4/1/11. She is now free of pain.

Alice applied for benefits before the surgeries occurred and SSA did not take them into consideration. She was denied based on duration. However, it has taken about fourteen months for her to recover sufficiently to return to work.

You get the case and immediately recognize the possibility of a closed period allowance. Alice meets the criteria for being totally disabled for more than twelve months. Therefore, she is entitled to receive benefits from the Established Onset Date (EOD) minus the six month waiting period. She’s looking at eight months of paid benefits, and you are her hero!

A closed period case has a well-defined eligibility interval and you should use only medical evidence generated during that period. Develop the case as usual, but limit your argument to the closed period dates. If SSA awards benefits, they will be paid in one lump sum for the period of documented disability.

Subjective Strategies

In this course, we concentrate on teaching you to use documented facts as the primary ammunition in a claim. However, a little professionally expressed empathy can go a long way toward helping you win a weaker case. Two subjective criteria that can help at the ALJ Level are:

· The Financial Plea

· The Pathetic Appearance Strategy

The Financial Plea: Another subtle but effective strategy for convincing an ALJ to agree to allow disability benefits is the financial plea technique. This approach essentially involves convincing the ALJ (as part of your argument) that your client's financial situation is contributing to a worsening of his/her condition.

This approach should never be used as the main argument for disability, but it can be incorporated into the discussion for effect. Do not use this approach to influence case outcome on the Initial or Reconsideration Levels.

Some of the most impactful financial conditions to mention are:

Loss of home
Lack of survival basics – food, shoes, winter coat, etc
Inability to pay for needed medical attention
Inability to afford needed medications

The hardship you claim must be verifiable through your client and/or his/her family or friends. Your Formal Argument must still be based on sound medical and vocational factors, with greatest emphasis on alleged impairments.

The Pathetic Appearance Strategy: The odds of winning at the ALJ Level are greater than at any other time in the disability process. Several of our students have asked us, “When should I go to a hearing with a client?” Our experience has shown us that it’s generally a good thing to attend all requested face-to-face hearings, especially if you have strong medical evidence and a client who appears pathetically impaired – that is, he/she looks disabled and physically compromised.

This strategy works in burn injury cases where there are severe disfigurements and in cases where the claimant uses a walker or otherwise appears very fragile. The pathetically impaired appearance strategy also works with less obvious disorders like arthritis. The ALJ may take such visual evidence into account when making the decision, although he/she will never cite appearance as a reason for allowance. This is an unusual but effective method of fine-tuning your argument by non-verbally tugging on the ALJ’s heart strings.

Just a Little Emotion, Please!

Now that we’ve addressed effective subjective strategies, we must add a caveat. Showing passion for your client and your work are fantastic, but don’t overdo it! We generally confine our emotional outbursts to an occasional snipe at a vocational specialist during a hearing.

The Formal Argument: Summary

The Formal Argument is the backbone of case representation and each one should be carefully constructed. The single most important objective of the argument is to make your client appear as disabled as possible without altering case facts. If your Formal Argument makes sense, regardless of your writing style, you have a good shot at winning an allowance. Citing additional impairments and limitations is effective at the appeal levels (Reconsideration and ALJ) because it forces the DDS Examiner or ALJ to revisit the case, taking into consideration additional impairments or restrictions.

Your argument should be detailed but not long. Keep it to seven pages or less. Our Formal Arguments are typically less than four pages.

Note: Disability Associates offers a new online Argument Preparation tool in Olivia 2.0© called the MemoWrite Composer©. This unique tool will help you to create better arguments while saving you hours of processing time.

Always provide a Summary at the end of the document and make sure your conclusions are in the client's favor. Never appear apologetic for your position on critical issues of the client’s case. Always be firm in your conclusions, but use a humble tone and an open-minded attitude.

Remember that the ALJ has the power to consider all possible aspects of your case. He/she can consider findings that have been ignored or overlooked by SSA at previous adjudicative levels. Your client is usually the best source for such new information. If you have evidence that was not properly considered before, make sure to present it in your argument and/or during the hearing.

We’ll discuss other argument strategies and how to handle face-to-face hearings in the Business Guide.

This is the final lesson in the Study Guide

What’s Next?

You have now successfully completed all eight lessons of the Disability Associates Training Program Study Guide. In the Study Guide, you have been repetitively subjected to SSA disability processes and procedures. But you’re not done yet!

Move on to the Business Guide. This text covers the same territory as the Study Guide, but from an Operational perspective. Continue your training by opening Lesson One of the Business Guide.