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A Trial Attorney’s Perspective on the New Social Security Rulings
5/25/1999

By Matt Greenbaum

INTRODUCTION

From my perspective, as a trial attorney for over 20 years, the new Social Security rulings are a shrewd effort to cut the rate of favorable decisions by 20%. The authors have cobbled together language from the Regulations and previous Social Security Rulings, in an effort to weave a united methodology for denying claims. For the last year, we have heard over and over again, that all of these rulings are based on earlier rulings. The point is, I guess, that Social Security is trying to sell us on the notion that there is nothing new here. But the key difference is that never before, have all of these rulings been placed together in one unified package. Anyone familiar with the Social Security rulings that have been issued over the past 15 years, knows that, on the whole, they have been generally favorable to the claimant. For the first time, we are now faced with a tilted playing field.

As you remember from George Orwell’s prescient novel, 1984, in order to convert the masses to love Big Brother, the authorities utilized a new language called Newspeak. The 1997 version of Newspeak are the 1996 Social Security rulings. We are being encouraged by our local Office of Hearings and Appeals to analyze each and every case in light of these rulings. We are being told to speak to the judges about "96-2" or "96-6". Of course they want us to talk their language! Its no different than Las Vegas--they want you to come to their casinos! When you enter the slot machine palace, the odds are against you. If you talk the talk of the new rulings, you are playing on a tilted field, and the tilt ain’t in your favor.

Every single decision being issued by the New Orleans Office of Hearings and Appeals, whether favorable or unfavorable must now contain mention of one of the new rulings. What we must do, as attorneys entrusted with our client’s futures, is to read and re-read these rulings. We must not rely on Ethel Zelenske’s important analysis. As good as it is, we must do our own analyses. Your client’s future is in your hands, not NOSSCR’s hands. We must read each ruling carefully. If you do, you can find helpful nuggets hidden inside the mine field.

We can use these rulings to win cases. The administrative law judges want to hear your analysis of these rulings. What you will find in the next few pages are some thoughts that may help us all. This is not a law review article. It is an effort to fight one year of brain washing and indoctrination known as Process Unification Training. I have selected five rulings (96-2, 96-3, 96-4, 96-7 and 96-8) in an effort to show you how these rulings can be utilized to help your clients.

Social Security Ruling 96-2(p)

Giving controlling weight to treating source medical opinions.

While this ruling seeks to erode the power of a treating source medical opinion, there is some helpful language in the ruling. The ruling states that if a treating source’s medical opinion is well-supported, and not inconsistent with other substantial evidence, then that opinion must be given controlling weight. In other words, your client’s doctor’s opinion as to his restrictions must be adopted.

The ruling goes on to state that even if the treating source medical opinion is not given controlling weight, that does not mean that it must be rejected. It still may be entitled to "deference" and adopted by the adjudicator. The word "deference" is not defined. However, the dictionary definition of deference would seem to indicate that all other opinions must give way to the treating source medical opinion.

It is also interesting to note in this ruling that there is a definition of "well-supported" . "Well-supported" does not mean "fully supported". This is a judgment call based on the extent to which the treating source’s medical opinion is buttressed by other opinions.

Social Security Ruling 93-3(p)

Considering allegations of pain in determining whether an impairment is severe

In the past, we have received numerous denials based on step 2 of the sequential evaluation, despite our client’s complaints of severe pain. This ruling is an effort to change that aberration. First of all, the ruling commands that to determine whether a physical or mental impairment is severe, there must be an assessment of the functionally limiting effects of the impairment. Most importantly, where an individual has pain based on a medically determinable impairment, the claim cannot be rejected at step 2 as "non-severe" unless the impairment is only a "slight abnormality with no more than minimal effect on the ability to do basic work activities." That means that no claim can now be denied at step 2 unless it can be shown that the pain causes only a slight abnormality or a minimal effect on the ability to perform work.

Also, it is extremely important to note that this ruling now commands that if an adjudicator is unable to clearly determine the effect of an impairment on the ability to work, it cannot be denied at step two as "non-severe".

Social Security Ruling 96-4(p)

Symptoms, medically determinable impairments and exertional and non-exertional limitations.

This seems to be some sort of catch-all ruling. It combines several non-related philosophies. First of all, it is made clear that a symptom alone cannot be the basis for disability, unless it stems from a medically determinable impairment. Accordingly, pain, without some etiology, is not going to be a basis anymore for granting benefits. However, once an impairment which could reasonably be expected to cause pain has been established, allegations about the intensity and persistence of symptoms must be considered in evaluating the functionally limiting effects of the impairment.

Also, it must be noted that pain can now be classified as an exertional limitation if it limits the ability to perform strength activity.

Social Security Ruling 96-7(p)

Credibility

The most important job for an attorney in a Social Security case is buttressing a client’s credibility, because this is the most imprecise aspect of the case. An administrative law judge can read the same medical reports that you can--but he has not met your client and does not know why your client should be deemed credible.

Now, Social Security Ruling 96-7(p) commands that an adjudicator must recite specific reasons for finding credibility Vel non. Once the threshold requirement of finding an underlying medically determinable impairment has been satisfied, if complaints of pain are not substantiated by objective medical evidence, then a finding on credibility is mandated. For the first time, a three part test for measuring credibility now exists:

1. Consistency

A judge will measure whether your client’s complaints are internally consistent and also, whether they are consistent with other aspects of the record. This means that if your client complained on one occasion that it was his right arm that hurt, and then complained on another occasion that it was his left arm, you have a credibility problem. On the other hand, if he has consistent complaints in the lumbar spine, and each and every doctor that he saw records the same medical history and the same complaints of pain, this is a basis for deeming your client credible.

2. Clinical Observations

A good lawyer will seek to show that his client is credible because the complaints of pain are buttressed by objective medical evidence. This means that if you can show that your client’s treating physician found muscle spasms, or reduced joint motion then your client’s complaints of pain may now be deemed credible.

3. Longitudinal Medical Treatment

Credibility can be shown by a persistent and consistent history of medical treatment. If your client has complaints of back pain, and has been seeing a physician for several years, it is hard to state that he does not really have such pain! The administrative law judge will be asked to look at whether or not the client has made persistent efforts to relieve the pain. Has the physician increased medication? Has the physician tried different modalities of treatment? Has the physician referred your client to a specialist? Has your client changed doctors in an effort to relieve the pain? If you can show each and every one of these things, it is very hard for a judge to state that your client is not credible. On the other hand, a lack of treatment, or a failure to follow a medication regimen, would be very strong evidence that your client is not credible.

Social Security Ruling 96-8(p)

Assessing residual functional capacity in initial claims

An administrative law judge or an adjudicator below must now consider all allegations of physical and mental limitation to assess a residual functional capacity. They must consider restrictions that are imposed by all impairments, even those that are not severe. For the first time, the rulings now recognize that a combination of impairments may prevent the performance of past relevant work or any job.

It is also very interesting to note that the ruling specifies that mental limitations now include: the ability to understand, carry out and remember instructions, use judgment in making work-related decisions, respond appropriately to supervision, respond appropriately to co-workers in work situations, and deal with changes in a routine work setting.

In other words, this ruling strengthens the ability to show that mental limitations, or a combination of physical and mental limitations can severely restrict the ability to perform work. I am enclosing a posting from the NOSSCR web site which indicates that an administrative law judge has already utilized this ruling to grant benefits.

CONCLUSION

The new Social Security Rulings and the massive indoctrination which has accompanied them provide a great challenge to our ability to win cases. However, there is language in each of the rulings specified above which can help our clients. It is our job to read and re-read these rulings to find favorable language. You cannot finesse these rulings. They are being used in each and every case. We must master them, and utilize whatever good language exists to help our clients.

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