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ABOUT THE AUTHORSSarah H. Bohr is an appellate attorney who has specialized in Social Security law for 30 years. She

first began handling Social Security cases in 1978 as a non-attorney representative at Jacksonville Area LegalAid, Inc., while she was awaiting her bar results. In her distinguished career, she has worked in all areas ofthe practice of Social Security law, from administrative representation, district court appeals (including classaction litigation), circuit court appeals, to litigating before the Supreme Court of the United States.

Ms. Bohr is a partner in Bohr & Harrington, LLC, a Jacksonville, Florida law firm offering a nationalSocial Security brief writing service. She has written briefs for filing in district courts all across the countryas well as in the First, Second, Third, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuit Courts of Appealand successfully argued Sims v. Apfel, 530 U.S. 103 (2000) before the Supreme Court.

She is a past president of the National Organization of Social Security Claimants’ Representatives(“NOSSCR”) and a member of NOSSCR’s Board of Directors and Council of Past Presidents. As Presidentof NOSSCR, she had the privilege of testifying before the Social Security Subcommittee. She was also a2007 recipient of NOSSCR's Eileen P. Sweeney's Distinguished Service Award, awarded in recognition ofher distinguished service on behalf of people with disabilities in America. In February 2008, Ms. Bohr wasalso presented with a professionalism award by the U.S. District Court for the Middle District of Florida,Orlando Division, for her pro bono work as court-appointed Inventory Attorney in 72 Social Security feder-al court cases on behalf of the court.

Ms. Bohr is a frequent lecturer on Social Security issues at national conferences on a wide range ofissues. She also is the author of four publications: Winning Appeals Council Arguments 5th Edition; PocketGuide to Key Social Security Rulings 3rd Edition; Pocket Guide to Social Security Disability Law; andEleventh Circuit Social Security Cases 2012 Update.

Ms. Bohr is past Chair of The Florida Bar Council of Sections, past Chair of the Public Interest LawSection, and past Chair of the Juvenile Court Rules Committee and is an alumni of the Chester Bedell Innof Court and Leadership Jacksonville.

Ms. Bohr obtained her law degree from Antioch School of Law in Washington, D.C. and previouslyworked as a legal services attorney for 20 years at Jacksonville Area Legal Aid, Inc. Some reported SocialSecurity federal court cases successfully briefed and won by Ms. Bohr in the past 25 years include:

Supreme Court:Sims v. Apfel, 120 S.Ct. 2080 (2000)

Circuit Courts:Second: Parker-Grose v. Astrue, 462 Fed. App'x 16 (2d Cir. 2012); Brown v. Apfel, 174 F.3d 59 (2d

Cir. 1999) Third: Bryan v. Comm’r of Soc. Sec., 383 Fed. App'x 140 (3d Cir. 2010)Seventh: Stewart v. Astrue, 561 F.3d 679 (7th Cir. 2009)Ninth: Hutchens v. Commissioner of Social Sec., 248 Fed. Appx. 788, 2007 WL 2693676 (9th Cir. Sept.

10, 2007); Sorn v. Barnhart, 178 Fed. App. 680, 2006 WL 1208117 (9th Cir. May 3, 2006)Eleventh: Kornhauser v. Comm'r of Soc. Sec., 685 F.3d 1254 (11th Cir. 2012); Siverio v. Comm'r of

Soc. Sec., 461 Fed. App'x 869 (11th Cir. 2012); Dempsey v. Comm'r of Soc. Sec., 454 Fed.App'x (11th Cir. 2011); Popock v. Astrue, 374 Fed. App'x 903 (11th Cir. 2010); Somogy v.Comm'r of Soc. Sec., 386 Fed. App'x 56 (11th Cir. 2010); Kinnaird v. Barnhart, 138 Fed. App'x224 (11th Cir. 2005); Stewart v. Apfel, Case No. 99-6132, 245 F.3d 793 (Table) 2000 U.S.App.LEXIS 33214 (11th Cir. Dec. 20, 2000); Myers v. Sullivan, 916 F.2d 659 (11th Cir. 1990);

F-3 SOCIAL SECURITY ISSUES ANNOTATED

(Rev. 10, 12/12)

SOCIAL SECURITY ISSUES ANNOTATED F-4

Stratton v. Bowen, 827 F.2d 1447 (11th Cir. 1987); Flynn v. Heckler, 768 F.2d 1273 (11th Cir.1986)

District Courts:Alabama: Buckhalt v. Astrue, 2008 WL 5111220 (M.D. Ala. Dec. 3, 2008); Salter v. Astrue, 2008 WL

5082296 (M.D. Ala. Nov. 26, 2008); Tillery v. Astrue, 2008 WL 2811149 (M.D. Ala. July 18,2008); Warren-Ward v. Astrue, 2008 WL 2397390 (M.D. Ala. June 10, 2008); Jones vBarnhart, 518 F. Supp.2d 1327 (N.D. Ala. 2007); Stricklin v. Astrue, 493 F. Supp.2d 1191 (N.D.Ala. 2007); Stutts v. Astrue, 489 F. Supp.2d 1291 (N.D. Ala. 2007); Smith v. Astrue, 2007 WL5326197 (N.D. Ala. Oct. 11, 2007); Cole ex rel. E.S.C. v. Barnhart, 436 F. Supp. 2d 1239 (N.D.Ala. 2006); Cook v. Barnhart, 347 F. Supp.2d 1125 (M.D. Ala. 2004); White v. Barnhart, 336F. Supp.2d 1183 (N.D. Ala. 2004)

California: Xue Vang v. Astrue, 2012 WL 1082205 (E.D. Cal. Mar. 29, 2012); O'Bosky v. Astrue, 651F. Supp.2d 1147 (E.D. Cal. 2009); Herbert v. Astrue, 2008 WL 4490024 (E.D. Cal. Sept. 30,2008); Ogletree v. Astrue, 2008 WL 4372446 (E.D. Cal. Sept. 22, 2008); Flores v. Astrue, 2008WL 4279389 (E.D. Cal. Sept. 11, 2008); Khan v. Comm'r of Soc. Sec., 2008 WL 2694759 (E.D.Cal. July 7, 2008); Brienzo v. Astrue, 2008 WL 1734612 (E.D. Cal. Apr. 11, 2008); Blum v.Astrue, 2008 WL 618970 (E.D. Cal. Mar. 3, 2008); Robinson v. Astrue, 2005 WL 6077067(E.D. Cal. Mar. 7, 2005)

Delaware: Konya v. Barnhart, 391 F. Supp.2d 273 (D. Del. 2005)Florida: Henn v. Astrue, 2012 WL 2813878 (M.D. Fla. July 10, 2012), adopting R&R in Henn v.

Comm'r of Soc. Sec., 2012 WL 2814011 (M.D. Fla. June 14, 2012); Clark v. Astrue, 2012 WL570345 (M.D. Fla. Feb. 22, 2012); Romanzi v. Comm'r of Soc. Sec., 2011 WL 3862527 (M.D.Fla. Sept. 1, 2011); DiDomenico v. Astrue, 2011 WL 1832990 (S.D. Fla. May 13, 2011), adopt-ing R& R in DiDomenico v. Astrue, 2011 WL 1832949 (S.D. Fla. April 25, 2011); Mitcham exrel. K.N.M. v. Comm'r of Soc. Sec., 2011 WL 550515 (M.D. Fla. Feb. 9, 2011); Gay v. Astrue,2010 WL 4818380 (M.D. Fla. Nov. 15, 2010) adopting R&R in Gay v. Astrue, 2010 WL4735827 (M.D. Fla. Oct. 27, 2010); Lavender v. Comm'r of Soc. Sec., 2010 WL 3860739 (M.D.Fla. Sept. 30, 2010); Cali v. Comm'r of Soc. Sec., 2010 WL 2510652 (M.D. Fla. June 21, 2010);Ripley v. Astrue, 2010 WL 1759554 (M.D. Fla. Apr. 30, 2010); Haverkate v. Astrue, 2010 WL668284 (M.D. Fla. Feb. 19, 2010); Rodgers v. Astrue, 657 F. Supp.2d 1275 (M.D. Fla. 2009);Strain v. Astrue, 2009 WL 2207509 (M.D. Fla. July 14, 2009); Rodgers v. Astrue, 2009 WL513757 (M.D. Fla. Mar. 2, 2009); Bertash v. Astrue, 2008 WL 4701923 (S.D. Fla. Oct. 22,2008); Reid v. Comm'r of Soc. Sec., 2008 WL 4279675 (M.D. Fla. Sept. 15, 2008); Chandlerv. Comm'r of Soc. Sec., 2008 WL 3365716 (M.D. Fla. Aug. 8, 2008); Yonce v. Conm'r of Soc.Sec., 2008 WL 2414307 (M.D. Fla. June 11, 2008); Summerall v. Astrue, 2008 WL 1819440(M.D. Fla. Apr. 23, 2008); Paltan v. Comm'r of Soc. Sec., 2008 WL 1777678 (M.D. Fla. Apr.22, 2008); Smith v. Astrue, 2008 WL 879380 (M.D. Fla. Mar. 28, 2008); Griffith v. Astrue, 2008WL 874872 (M.D. Fla. Mar. 27, 2008); Saunders v. Astrue, 2008 WL 821939 (M.D. Fla. Mar.26, 2008); Yonce v. Comm'r of Soc. Sec., 2008 WL 312768 (M.D. Fla. Feb. 4, 2008); Jones v.Astrue, 533 F. Supp.2d 1206 (M.D. Fla. 2007); McManus v. Barnhart, 2004 WL 3316303(M.D. Fla. Dec. 14, 2004); Leik v. Barnhart, 296 F. Supp.2d 1345 (M.D. Fla. 2003); Davis v.Apfel, 2000 WL 1658575 (M.D. Fla. Aug. 14, 2000); Sanders by Wakefield v. Apfel, 85 F.Supp.2d 1275 (M.D. Fla. 1999); Richardson v. Apfel, 44 F. Supp.2d 1264 (M.D. Fla. 1998)

Georgia: Echols v. Astrue, 2011 WL 1004829 (N.D. Ga. Mar. 16, 2011) adopting R&R in Echols v.Astrue, 2011 WL 1004665 (N.D. Ga. Jan. 27, 2011)

Louisiana: Jones v. Astrue, 2012 WL 3660711 (W.D. La. June 27, 2012); Downs v. Astrue, 2010 WL5648870 (W.D. La. Nov. 23, 2010); Parrott v. Astrue, 2010 WL 5625056 (W.D. La. Dec. 2,2010); Bearden v. Astrue, 2010 WL 3155986 (W.D. La. Aug. 9, 2010), adopting R&R inBearden v. Astrue, 2010 WL 3154549 (W.D. La. July 14, 2010); Moore v. Astrue, 2010 WL3306870 (W.D. La. July 30, 2010); Coleman v. Astrue, 2010 WL 3257621 (W.D. La. July 21,2010); Evans v. Astrue, 2010 WL 114235 (W.D. La. Jan. 11, 2010); Dowles v. Barnhart, 258 F.Supp.2d 478 (W.D. La. 2003); Austin v. Massanari, 162 F. Supp.2d 517 (W.D. La. 2001)

Maine: Dunn v. Astrue, 2010 WL 2670851 (D.Me. June 28, 2010); Miller v. Astrue, 2010 WL 1935752(D. Me. May 10, 2010); Zarilli v. Astrue, 2008 WL 4936613 (D. Me. Nov. 16, 2008);McFarlane v. Astrue, 2008 WL 660225 (D. Me. Mar. 5, 2008)

Massachusetts: Friedman v. Astrue, 2011 WL 4590563 (D. Mass. Sept. 28, 2011); Whitzell v.Barnhart, 379 F. Supp.2d 204 (D. Mass. 2005)

Mississippi: Davidson v. Comm’r of Soc. Sec., 2001 WL 1524358 (N.D. Miss. May 29, 2001)New Hampshire: Smith v. Astrue, 2011 WL 1979665 (D.N.H. May 20, 2011); Fortin v. Astrue, 2011

WL 2295171 (D.N.H. May 18, 2011) Mead v. Barnhart, 2004 WL 2580744 (D.N.H. Nov. 15,2004)

New Jersey: Friedman v. Astrue, 2010 WL 4292127 (D.N.J. Oct. 21, 2010New York: Felder v. Astrue, 2012 WL 3993594 (E.D.N.Y. Sept. 11, 2012); Stokes v. Comm'r of Soc.

Sec., 2012 WL 1067660 (E.D.N.Y. Mar. 29, 2012); Day v. Astrue, 2011 WL 1467652 (E.D.N.Y.Apr. 18, 2011); Calderon v. Astrue, 683 F. Supp.2d 273 (E.D.N.Y. 2010); Lahoz v. Astrue, 2010WL 3310266 (E.D.N.Y. Aug. 19, 2010); Barillaro v. Comm'r of Soc. Sec., 216 F. Supp.2d 121(E.D.N.Y. 2002)

Tennessee: Huggins v. Barnhart, 2003 WL 21946460 (W.D. Tenn. July 1, 2003); Lamb v. Massanari,2001 WL 1910060 (W.D. Tenn. Dec. 12, 2001)

In her free time, Ms. Bohr is an accomplished amateur ballroom dancer, and dances at national ballroomdance competitions with her professional partner, Pavel Cherdantsau.

For more information regarding Ms. Bohr’s brief writing service, please contact her at Bohr &Harrington, LLC, 2337 Seminole Road, Atlantic Beach, Florida 32233; telephone (904) 246-7603; facsimile(904) 246-8884; e-mail: [email protected].

Curtis J. Fisher is an attorney and brief writer who operates a law office in Wisconsin. He has com-posed many briefs for Social Security cases being litigated in district courts as well as in circuit courts ofappeal. He also has experience representing clients in Wisconsin courts and before the Seventh Circuit Courtof Appeals.

After law school, Mr. Fisher spent several years working as a judicial law clerk for the HonorableHoward T. Snyder, United States Magistrate Judge, United States District Court, Middle District of Florida.While a law clerk, he researched and drafted detailed opinions for a wide range of cases, including a largenumber of Social Security appeals.

Mr. Fisher graduated magna cum laude from the University of Minnesota Law School, class of 1999.He served on both the Minnesota Law Review and National Moot Court Competition Team. He is a recipi-ent of the F. Lewis Powell, Jr. Medal for Excellence in Advocacy.

Kimberly V. Cheiken is Associate Professor in the School of Security and Global Studies atAmerican Public University/American Military University where she teaches Judicial Process, AmericanGovernment, Research Methods and Federalism. She previously worked with Dianne R. Newman, Esq. ofShifrin Newman Smith Inc., in Akron, Ohio, for five years, representing clients in Social Security cases. Ms.Cheiken also assisted Ms. Bohr in writing Winning Appeals Council Arguments, Fourth Edition, as well asthe 2008 update to Eleventh Circuit Social Security Cases.

Ms. Cheiken received her Bachelor of Science in Economics from the Wharton School of the Universityof Pennsylvania, and her Juris Doctorate from the University of Pennsylvania Law School.

F-4.1 SOCIAL SECURITY ISSUES ANNOTATED

(Rev. 10, 12/12)

EDITORIAL STAFF — 2012 supplementEditors: Scilla Bennett and Sarah Lee

Production: Amanda Winkler

SOCIAL SECURITY ISSUES ANNOTATED F-4.2

APPEALS COUNCIL ARGUMENTS OUTLINESUMMARY OF ARGUMENTS

I. CASE UPDATE

II. CASE SURVEY

§ 100 SEQUENTIAL EVALUATION PROCESS

§ 101 DEFINITION OF DISABILITY§ 101.1 Statutory Definition§ 101.2 Purpose of the Social Security Act§ 101.3 Claimant’s Burden to Prove Disability§ 101.4 Evidence Considered in Determining Disability§ 101.5 Duration of Impairments§ 101.6 Childhood Disability Insurance Benefits§ 101.7 Statutory Blindness

§ 102 STEP 1: SUBSTANTIAL GAINFUL ACTIVITY (SGA)§ 102.1 Definition of SGA§ 102.2 Part-Time Work as SGA§ 102.3 Illegal Activity as SGA§ 102.4 Work Activity Which is an Unsuccessful Work Attempt§ 102.5 Return to Work as Part of “Trial Work Period”§ 102.6 Work Performed Under Special Conditions§ 102.7 SGA for Self-Employed Individuals

§ 103 STEP 2: SEVERE IMPAIRMENT§ 103.1 Definition of Severity§ 103.2 Severity: Need to Consider Combined Effect of Impairments§ 103.3 Severity: Need to Consider Subjective Symptoms§ 103.4 Severity: ALJ’s Duty to List all Severe Impairments§ 103.5 ALJ’s Duty to Make Specific Findings Regarding Severity§ 103.6 Effect of Absence of Medical Signs or Diagnosis

§ 104 STEP 3: LISTED IMPAIRMENT§ 104.1 Effect of Impairment Meeting or Equaling a Listing§ 104.2 Meeting a Listing — General§ 104.3 Use of Medical Expert Opinions in Evaluating Whether Listing is Met§ 104.4 Medically Equivalent to a Listing — General


(Rev. 9, 4/11)

TABLE OF CONTENTS


§ 104.5 Medical Equivalence to a Listing: ALJ’s Responsibility to ObtainMedical Expert Opinion

§ 104.6 Medical Equivalence to a Listing: Need to Consider Combined Effect ofImpairments

§ 104.7 ALJ’s Duty to Discuss Whether Impairment(s) Meets/Equals a Listing

§ 105 RESIDUAL FUNCTIONAL CAPACITY (RFC)§ 105.1 Definition of RFC§ 105.2 Definition of Sedentary Work§ 105.3 Definition of Light Work§ 105.4 Definition of Medium Work§ 105.5 Sit/Stand Option and its Impact on RFC§ 105.6 RFC Forms§ 105.7 RFC: Need to Consider All Impairments§ 105.8 RFC: Need to Consider Effect of Mental Impairments§ 105.9 Stress and its Effect on the Ability to Work§ 105.10 Lack of an Updated or Any RFC Assessment in the Record§ 105.11 RFC: Need to Consider Non-Medical Evidence§ 105.12 RFC: Must be Supported by the Record§ 105.13 Absenteeism and its Effect on Ability to Work§ 105.14 RFC: Need to Consider Claimant’s Testimony§ 105.15 RFC: Documentation Requirements § 105.16 Rest Periods and Their Impact on RFC

§ 106 STEP 4: PAST RELEVANT WORK§ 106.1 Claimant’s Burden to Establish Inability to Perform Past Relevant Work§ 106.2 Past Relevant Work — General§ 106.3 ALJ’s Duty to Make Findings Regarding Physical and Mental Demands

of Past Relevant Work§ 106.4 Past Relevant Work: Work Performed for Short Periods of Time§ 106.5 Past Relevant Work: Job Training and Other Work Performed Under

Special Conditions§ 106.6 Past Relevant Work: Work Performed More than Fifteen Years Prior to

the Date of Adjudication§ 106.7 Past Relevant Work: Work No Longer Available§ 106.8 No Need for Vocational Expert at Step Four§ 106.9 Need for Past Relevant Work to be SGA§ 106.10 Composite Jobs

§ 107 STEP 5: OTHER WORK§ 107.1 Commissioner’s Burden to Establish Other Work§ 107.2 Other Work: Need to Consider Combined Effect of Impairments§ 107.3 Use of Medical-Vocational Guidelines, or “Grids”

§ 107.4 Effect of Borderline Age on the Application of the Grids§ 107.5 Evaluation of Illiteracy§ 107.6 Evaluation of Education§ 107.7 Effect of the Inability to Speak English on the Application of the Grids§ 107.8 Skill Levels of Jobs§ 107.9 Transferability of Skills§ 107.10 Application of the Grids to Younger Claimants§ 107.11 Effect of Borderline Mental Capacity on the Application of the Grids§ 107.12 Nonexertional Impairments and their Impact on the Application of Grids§ 107.13 Inability to Perform the Full Range of Work and its Impact on the

Application of the Grids§ 107.14 Manipulative Limitations and their Effect on the Ability to Perform the

Full Range of Sedentary Work§ 107.15 Inability to Stoop and its Effect on the Ability to Perform the Full Range

of Sedentary Work§ 107.16 Need for Vocational Expert Testimony — Presence of Nonexertional

Impairments§ 107.17 Need for Vocational Expert Testimony — Inability to Perform the Full

Range of Work§ 107.18 Effect of ADA on the Ability to Perform Other Work§ 107.19 Significant Number of Jobs in the National Economy§ 107.20 Need to be Able to Engage in Full-Time Work Activities§ 107.21 Claimants Over Age 55 — Special Issues§ 107.22 Application of the “Worn-Out Worker” Regulation

§ 200 ASSESSMENT OF DISABILITY ISSUES

§ 201 MEDICAL IMPROVEMENT ISSUES§ 201.1 Medical Improvement Standard§ 201.2 Medical Improvement: Required in Closed Period of Disability Cases§ 201.3 Medical Improvement: Effect of Participation in Vocational

Rehabilitation Program§ 201.4 Failure to Seek Medical Treatment and its Impact on Medical

Improvement§ 201.5 Basis to Find Medical Improvement§ 201.6 Commissioner’s Burden in Medical Improvement Cases

§ 202 WEIGHT OF TREATING PHYSICIAN’S OPINION§ 202.1 Regulatory Standard Regarding Weight of Treating Physician’s Opinion§ 202.2 Treating Physician Rule by Circuits§ 202.3 Factors Affecting Weight of Treating Physician’s Opinion§ 202.4 Treating Physician’s Opinion Regarding Ultimate Issue of Disability§ 202.5 Retrospective Opinion from Treating Physician


(Rev. 9, 4/11)

§ 202.6 ALJ’s Duty to Develop Evidence from Treating Physician§ 202.7 ALJ’s Duties Regarding Consideration of Evidence from Treating

Physician§ 202.8 Need for ALJ to Provide Good Cause for Rejecting Treating Physician’s

Opinion§ 202.9 Basis to Reject Treating Physician’s Opinion§ 202.10 Treating Therapist is an Acceptable Medical Source§ 202.11 Acceptable Medical Sources§ 202.12 Treating Physician’s Opinion Regarding Ability to Obtain Employment

§ 203 WEIGHT OF THE EVIDENCE§ 203.1 The ALJ’s Duty to Weigh All the Evidence§ 203.2 Weight of Uncontroverted Medical Evidence§ 203.3 Evaluating the Weight of Any Medical Opinion§ 203.4 Weight of Treating Physician v. Consulting Physician§ 203.5 Weight of Treating Physician v. Non-Examining Physician§ 203.6 Weight of the Non-Examining Reviewing Consultant§ 203.7 Weight of Examining Physician v. Non-Examining Physician§ 203.8 Weight of Specialist v. Non-Specialist§ 203.9 Retrospective Diagnosis by Physicians§ 203.10 Weight of Recent Medical Evidence§ 203.11 Rejection of Medical Opinion Which is Based on Symptomology§ 203.12 Rejection of Physician’s Opinion Secured by an Attorney§ 203.13 Weight of an Unsigned Medical Report from Consulting Physician§ 203.14 Weight of Evidence from a Chiropractor§ 203.15 Weight of Evidence from a Nurse Practitioner§ 203.16 ALJ Cannot Substitute His or Her Own Opinion for Medical Expert’s

Opinion§ 203.17 Weight of Testimony of Lay Witnesses§ 203.18 Weight of Evidence from a Podiatrist§ 203.19 Weight of Evidence from a Mental Health Counselor§ 203.20 Duty to Recontact Consultative Physician § 203.21 Weight of Opinion Based on a Review of All the Evidence§ 203.22 Weight and Admissibility of Investigative Reports/Surveillance Tapes§ 203.23 Rejection of Impairment Because Cause of Impairment is Unknown

§ 204 CREDIBILITY§ 204.1 Need for Credibility Findings§ 204.2 ALJ’s Credibility Findings Entitled to Deference§ 204.3 Factors to Consider in Making Credibility Determinations§ 204.4 Discrediting Testimony Based on Inconsistencies in the Record§ 204.5 Discrediting Testimony Based on the Motives of Witnesses


§ 204.6 Lack of Medical Treatment and Credibility§ 204.7 Work History and Credibility§ 204.8 Daily Activities and Impact on Credibility§ 204.9 Medical Regimen and Impact on Credibility§ 204.10 Lack of Objective Medical Evidence and Credibility§ 204.11 Credibility and Medical Opinion that Claimant is Exaggerating§ 204.12 Credibility Findings Based on Errors of Fact or Logic

§ 205 EVALUATION OF COMPLAINTS OF PAIN AND OTHER SUBJECTIVE SYMPTOMS§ 205.1 Statutory and Regulatory Pain Standard§ 205.2 Pain Standard by Circuits§ 205.3 Application of the Pain Standard to Other Subjective Symptoms§ 205.4 Pain Testimony Supported by Medical Evidence Must be Afforded Great

Weight§ 205.5 Rejecting Subjective Complaints Based on the Lack of Objective

Evidence§ 205.6 Rejecting Subjective Complaints Based on Inconsistencies in the Record§ 205.7 Rejecting Subjective Complaints Based on the Failure to Seek Medical

Treatment§ 205.8 Rejecting Subjective Complaints Based on the Failure to Take

Prescription Medication§ 205.9 Rejecting Subjective Complaints Based on Daily Activities§ 205.10 Need to Provide Specific Reasons for Rejecting Subjective Symptom

Testimony§ 205.11 Need to Consider Episodic Nature of Subjective Symptoms§ 205.12 Need to Consider Side Effects of Medication in Evaluating Subjective

Symptom Testimony§ 205.13 Effect of Failing to Provide Sufficient Reasons for Rejecting Subjective

Symptom Testimony§ 205.14 Pain and Medical Opinion that Claimant is Exaggerating§ 205.15 Need to Consider Non-Medical Evidence in Evaluating Subjective

Symptoms§ 205.16 Sit and Squirm Jurisprudence§ 205.17 Need to Consider Psychological Basis for Pain Complaints

§ 206 COMBINATION OF IMPAIRMENTS§ 206.1 Need to Consider the Combination of Impairments§ 206.2 Effect of Failing to Consider Each Severe Impairment

§ 207 EFFECT OF OPINIONS OF OTHER AGENCIES ON DISABILITYDETERMINATIONS§ 207.1 Effect of Disability Determinations of Other Agencies§ 207.2 Effect of Receipt of Unemployment Compensation


(Rev. 7, 2/08)

§ 208 FAILURE TO FOLLOW PRESCRIBED TREATMENT§ 208.1 Failure to Follow Treatment as a Basis for Denial of Benefits§ 208.2 Refusal to Follow Prescribed Treatment Must Be Willful§ 208.3 Following Treatment Must Restore Claimant’s Ability to Work§ 208.4 ALJ’s Duty to Investigate Reasons for Claimant’s Alleged

Noncompliance with Treatment§ 208.5 Inability to Afford Treatment

§ 209 ONSET DATE§ 209.1 Establishing Onset§ 209.2 Retrospective Opinion of Onset§ 209.3 Need for a Medical Advisor if the Onset Date Is Unclear§ 209.4 Need to Consider Other Evidence of Onset

§ 210 VOCATIONAL EXPERT TESTIMONY§ 210.1 Purpose of VE Testimony§ 210.2 Weight of Examining VE Evidence§ 210.3 ALJ Must Pose a Complete Hypothetical Question to the VE§ 210.4 Hypothetical Question Must Be Supported by the Record§ 210.5 Effect of Incomplete Hypothetical Question§ 210.6 Effect of Complete Hypothetical Question§ 210.7 Need to Raise Issue of Incomplete Hypothetical Question to ALJ§ 210.8 Mental Health Limitations and Their Impact on VE Testimony§ 210.9 Need for VE to Testify Regarding Claimant’s Ability to Engage in Full-

Time Work§ 210.10 Specific Vocational Preparation (“SVP”) as Set Forth in the DOT§ 210.11 Language/Math/Reading Skills Required to Perform Jobs as Set Forth in

the DOT§ 210.12 VE Testimony Which Conflicts with the DOT§ 210.13 VE Testimony Which Relies on the ADA§ 210.14 Effect of ALJ’s Mischaracterization of VE Testimony§ 210.15 Need for VE to use Reliable Methods in Forming Opinions§ 210.16 Reasoning Skills Required to Perform Jobs as Set Forth in the DOT

§ 211 MEDICAL EXPERT TESTIMONY§ 211.1 Need to Consider Medical Expert Testimony§ 211.2 Use of Medical Expert Who Had Prior Connection with Claim§ 211.3 Weight of Medical Expert’s Testimony§ 211.4 Need for Medical Expert at Hearing§ 211.5 Need for ME to Review All Medical Records§ 211.6 Need to Challenge ME’s Qualifications at the Hearing§ 211.7 Selection of Medical Expert



§ 212 CHILDREN’S SSI CLAIMS§ 212.1 1996 Changes to Children’s SSI Disability Statute: Overview§ 212.2 Effect of Changes to Children’s SSI Disability Statute & Regulations on

Applicants and Recipients§ 212.3 Step 1: Substantial Gainful Activity by Children§ 212.4 Step 2: Severity of Childhood Impairments§ 212.5 Step 3: Meeting a Childhood Listing§ 212.6 Step 3: Medical Equivalency to a Childhood Listing§ 212.7 Step 3: Functional Equivalency to a Childhood Listing§ 212.8 SSI Children’s Claims: Evaluation of Adolescents§ 212.9 SSI Children’s Claims: Cases Decided Under Old Law§ 212.10 SSI Children’s Claims: Testimony of Parents§ 212.11 SSI Children’s Claims: School Records§ 212.12 SSI Children’s Claims: Use of Standardized Testing§ 212.13 Duration Requirement in Child’s SSI Claims

§ 300 SPECIFIC IMPAIRMENTS ISSUES

§ 301 ALCOHOLISM AND DRUG ADDICTION§ 301.1 Alcoholism and Drug Addiction: Effective Date of 1996 Legislation§ 301.2 Alcoholism or Drug Addiction as a Material Contributing Factor§ 301.3 Establishing Disability Based on Alcoholism Under the Old Law§ 301.4 Establishing Disability Based on Drug Addiction Under the Old Law§ 301.5 Evaluation of Fetal Alcohol Syndrome§ 301.6 Burden of Proof: Alcoholism or Drug Addiction as a Material

Contributing Factor

§ 302 CARDIOVASCULAR IMPAIRMENTS§ 302.1 Evaluation of Hypertension§ 302.2 Evaluation of Heart Impairments

§ 303 CHEMICAL SENSITIVITY AND ENVIRONMENTAL ISSUES AND/OR LIMITATION CASES§ 303.1 Evaluation of Chemical Sensitivity Impairments

§ 304 CHRONIC FATIGUE SYNDROME (CFS)§ 304.1 CFS Is a Medical Determinable Impairment§ 304.2 Evaluation of CFS§ 304.3 CFS: Objective Findings Not Necessary§ 304.4 Need to Consider Agency Policy in Evaluating CFS

§ 305 DIGESTIVE SYSTEM IMPAIRMENTS§ 305.1 Evaluation of Crohn’s Disease§ 305.2 Evaluation of Other Digestive System Impairments

(Rev. 7, 2/08)


§ 306 ENDOCRINE IMPAIRMENTS (EXCEPT OBESITY)§ 306.1 Evaluation of Thyroid Impairments§ 306.2 Evaluation of Diabetes

§ 307 FIBROMYALGIA§ 307.1 Fibromyalgia is a Medically Determinable Impairment§ 307.2 Fibromyalgia: Credibility of Complaints of Pain§ 307.3 Evaluation of Fibromyalgia

§ 308 GENITO-URINARY SYSTEM IMPAIRMENTS§ 308.1 Evaluation of Urinary and Bowel Problems§ 308.2 Evaluation of Nephrotic Syndrome

§ 309 GROWTH IMPAIRMENTS (CHILDHOOD LISTINGS)

§ 310 HEMIC AND LYMPHATIC SYSTEM IMPAIRMENTS§ 310.1 Evaluation of Sickle Cell Anemia

§ 311 IMMUNE SYSTEM IMPAIRMENTS§ 311.1 Evaluation of AIDS/HIV Infection§ 311.2 Evaluation of Lupus§ 311.3 Evaluation of Connective Tissue Disorders§ 311.4 Evaluation of Hodgkin’s Disease

§ 312 MENTAL IMPAIRMENTS§ 312.1 Claimant’s Burden to Establish Existence of Mental Impairment§ 312.2 Duty to Develop Record Regarding Mental Impairments§ 312.3 Severity of Mental Impairments — General§ 312.4 Limitations Contained on Mental RFC Forms§ 312.5 Required Completion of the Psychiatric Review Technique Form (“PRTF”)§ 312.6 Evaluation of Organic Mental Disorders§ 312.7 Evaluation of Psychotic Illnesses§ 312.8 Evaluation of Affective Disorders§ 312.9 Evaluation of Mental Retardation§ 312.10 Evaluation of Anxiety§ 312.11 Evaluation of Attention Deficit Hyperactivity Disorder (“ADHD”)§ 312.12 Validity of IQ Scores§ 312.13 Evaluation of Mental Retardation in Children§ 312.14 Evaluation of Somatoform Disorders/Chronic Pain Syndrome§ 312.15 Evaluation of Personality Disorders§ 312.16 Psychological Testing§ 312.17 Evaluation of Borderline Intellectual Functioning§ 312.18 Impairments Other Than ADHD Causing Attention and Impulsivity

Problems§ 312.19 GAF Scores

§ 313 MUSCULOSKELETAL IMPAIRMENTS§ 313.1 Evaluation of Arthritis§ 313.2 Evaluation of Back Impairments§ 313.3 Evaluation of Amputations§ 313.4 Evaluation of Other Musculoskeletal Impairments

§ 314 MULTIPLE BODY SYSTEMS (CHILDHOOD LISTINGS)

§ 315 NEOPLASTIC DISEASES

§ 316 NEUROLOGICAL IMPAIRMENTS§ 316.1 Evaluation of Epilepsy§ 316.2 Evaluation of Parkinson’s Disease§ 316.3 Evaluation of Multiple Sclerosis§ 316.4 Evaluation of Migraine Headaches§ 316.5 Evaluation of Post Polio Impairments§ 316.6 Evaluation of Strokes§ 316.7 Evaluation of Cerebral Palsy§ 316.8 Evaluation of Muscular Dystrophy

§ 317 OBESITY LISTING§ 317.1 Obesity Listing: Old Cases Decided Under Repealed Listing 9.09 § 317.2 Effect of Repeal of Obesity Listing§ 317.3 Evaluation of Obesity Under SSR-02-01p§ 317.4 Effect of Obesity on Other Impairments

§ 318 RESPIRATORY IMPAIRMENTS§ 318.1 Evaluation of Asthma§ 318.2 Evaluation of Other Respiratory Impairments

§ 319 SKIN IMPAIRMENTS

§ 320 SPECIAL SENSES AND SPEECH IMPAIRMENTS§ 320.1 Visual Impairments§ 320.2 Speech Impairments

§ 400 NON DISABILITY ISSUES

§ 401 SOCIAL SECURITY INSURANCE BENEFITS: ELIGIBILITY ISSUES§ 401.1 Quarters of Coverage — Generally§ 401.2 Quarters of Coverage — Self-Employed Workers§ 401.3 Amending Earnings Records§ 401.4 Family Maximum§ 401.5 Benefit Amounts


(Rev. 7, 2/08)


§ 401.6 Earnings Limits§ 401.7 Proof of Age§ 401.8 Payment of Disability Insurance Benefits to Non-Citizens

§ 402 REDUCTION/SUSPENSION OF SOCIAL SECURITY INSURANCE BENEFITS§ 402.1 Workers’ Compensation Offsets§ 402.2 Reductions in Benefits due to Receipt of Federal, State or Local Pension§ 402.3 Nonpayment of Benefits to Persons in Prisons§ 402.4 Nonpayment of Benefits to Persons in Prisons: Vocational Rehabilitation

Exception§ 402.5 Anti-Assignment Clause§ 402.6 Nonpayment of Benefits to Fleeing Felons§ 402.7 Windfall Offset Provisions§ 402.8 Reduction Due to Excess Earnings

§ 403 RETIREMENT BENEFITS§ 403.1 Burden to Establish Retirement§ 403.2 Fictitious Family Salary Arrangements

§ 404 BENEFITS FOR SPOUSES§ 404.1 Spouse Relationship — Generally§ 404.2 Spouse Relationship — State Law§ 404.3 Deemed Valid Marriage§ 404.4 Divorced Spouses§ 404.5 Widow’s Benefits

§ 405 BENEFITS FOR CHILDREN§ 405.1 Child Relationship — Generally§ 405.2 Child Relationship — Dependency Requirement§ 405.3 Child Relationship — State Inheritance Laws§ 405.4 Child Relationship — Acknowledgment in Writing§ 405.5 Child Relationship — Court Order of Paternity§ 405.6 Child Relationship — Evidence of Paternity and Living with or

Supporting Child§ 405.7 Benefits for Adopted Children§ 405.8 Benefits for Stepchildren§ 405.9 Benefits for Grandchildren and Stepgrandchildren§ 405.10 Child Relationship – Country of Domicile

§ 406 BENEFITS FOR PARENTS§ 406.1 Parent’s Insurance Benefits


§ 407 SSI ELIGIBILITY ISSUES§ 407.1 Purpose of SSI Program§ 407.2 Conditions of Eligibility — Generally§ 407.3 Citizenship/Legal Residency Rules§ 407.4 Age Requirement

§ 408 SSI INCOME RULES§ 408.1 Definition of Income§ 408.2 In-Kind Support and Maintenance — Generally§ 408.3 In-Kind Support and Maintenance — Rental Subsidies§ 408.4 Deeming of Income§ 408.5 SSI Benefit Amounts§ 408.6 SSI: Windfall Offset Provisions§ 408.7 SSI: Anti-Assignment Clause§ 408.8 Non-Payment of SSI Benefits to Persons in Institutions

§ 409 SSI RESOURCE RULES§ 409.1 Definition of Resource§ 409.2 Resource Exclusions — Generally§ 409.3 Resource Exclusions — Trusts§ 409.4 Resource Exclusions — Conservatory Accounts§ 409.5 Resource Exclusions: Life Insurance§ 409.6 Resource Exclusions: PASS Plans

§ 410 OVERPAYMENTS§ 410.1 Liability for Overpayments — Generally§ 410.2 Liability for Overpayments — Representative Payees§ 410.3 Waiver of Overpayments — Generally§ 410.4 Waiver of Overpayments — Burden of Proof§ 410.5 Waiver of Overpayments — Fault§ 410.6 Waiver of Overpayments — Defeat the Purpose of the Act§ 410.7 Waiver of Overpayments — Against Equity and Good Conscience§ 410.8 Waiver of Overpayments — Credibility Determinations

§ 411 REPRESENTATIVE PAYEES§ 411.1 Representative Payee — Generally§ 411.2 Order of Preference in Selecting Payees§ 411.3 Duties of the Representative Payee§ 411.4 Misuse of Benefits by Representative Payee

(Rev. 7, 2/08)

§ 500 ADMINISTRATIVE REVIEW ISSUES

§ 501 FILING OF APPLICATION AND APPEALS§ 501.1 Need to File Application for Benefits§ 501.2 Timing of Application§ 501.3 Period of Time Effected by Application§ 501.4 Duty to Advise Claimant of Need to File Application§ 501.5 Timely Filing of Administrative Appeals§ 501.6 Adequacy of Social Security Notices§ 501.7 Effect of Subsequent Approval of Claim for Benefits on Pending Claim § 501.8 Misinformation and Retroactive Application

§ 502 RIGHT TO COUNSEL§ 502.1 Claimant’s Statutory Right to Counsel§ 502.2 Waiver of Right to Counsel§ 502.3 Need to Show Prejudice by Lack of Representation

§ 503 HEARING PROCEDURES§ 503.1 Pre-Hearing Procedures§ 503.2 Right to Appear at a Hearing§ 503.3 Notification of Issues at Hearing§ 503.4 Non-adversarial Nature of Hearing§ 503.5 Right to Subpoena — General§ 503.6 Right to Subpoena and Cross-Examine Those Who Submit Pre-Hearing

Reports§ 503.7 Waiver of Right to Subpoena and Cross-Examine Those Who Submit

Pre-Hearing Reports§ 503.8 Consideration of Non-Record Evidence§ 503.9 Notice of Hearing Decision§ 503.10 ALJ’s Duty to Follow Remand Orders§ 503.11 ALJ’s Authority to Hear Case § 503.12 Right of Non-Attorney Parent to Represent Child in SSI Child’s Claim§ 503.13 Closing the Record§ 503.14 Notification of Reliance on SSR Instead of Individualized Determination§ 503.15 Waiver of Right to Appear at a Hearing

§ 504 ALJ’S DUTY TO DEVELOP THE RECORD§ 504.1 ALJ’s Duty to Develop Record — General§ 504.2 Heightened Duty When Claimant Not Represented by Counsel§ 504.3 Heightened Duty When Claimant Has Mental Impairments§ 504.4 Duty to Obtain All Pertinent, Available Records§ 504.5 Duty to Elicit Testimony from Witnesses§ 504.6 Duty to Order Consultative Examination



(Rev. 7, 2/08)

§ 504.7 Duty to Consider the Side Effects of Medications§ 504.8 Duty to Obtain Medical Source Statements

§ 505 CLAIMANT’S RIGHT TO EXAMINE POST-HEARING EVIDENCE§ 505.1 The ALJ is Permitted to Obtain Post-Hearing Evidence§ 505.2 Right to Cross-Examine Those Who Submit Post-Hearing Evidence§ 505.3 Waiver of the Right to Subpoena and Cross-Examine Those Who Submit

Post-Hearing Reports

§ 506 RES JUDICATA/COLLATERAL ESTOPPEL§ 506.1 Res Judicata§ 506.2 Doctrine of Collateral Estoppel

§ 507 REOPENINGS§ 507.1 Regulatory Basis to Reopen Prior Claims§ 507.2 Good Cause for Reopening Prior Claims§ 507.3 Faulty SSA Notices Warrant Reopening at Any Time

§ 508 ALJ BIAS§ 508.1 ALJ Must Afford Claimant a Full and Fair Hearing§ 508.2 Need to Present Bias Claim Administratively§ 508.3 If Bias Found, Case Should Be Heard by Different ALJ on Remand§ 508.4 ALJ Bias and Due Process Violation

§ 509 APPEALS COUNCIL REVIEW§ 509.1 Timeliness of Requesting Appeals Council Review§ 509.2 Scope of Appeals Council Review§ 509.3 New Evidence Submitted to the Appeals Council§ 509.4 Basis to Deny Appeals Council Review§ 509.5 Loss of Underlying Claim File by Appeals Council§ 509.6 Appeals Council’s Duty to Develop Record§ 509.7 Impact of Appeals Council’s Denial of Review

§ 600 FEDERAL COURT ISSUES

§ 601 WAIVER OF RIGHT TO RAISE ISSUES§ 601.1 Waiver: Failure to Raise Issues Administratively§ 601.2 Waiver: Failure to Properly Raise Issues in Federal Court

§ 602 JUDICIAL REVIEW OF DENIAL OF REOPENING REQUEST§ 602.1 Denials of Reopening Requests Generally Not Subject to Judicial

Review§ 602.2 Exception to Reopening: Claimant Raises a Constitutional Challenge§ 602.3 Exception to Reopening: ALJ Reconsiders the Evidence of the Prior Claim


§ 603 OTHER PROCEDURAL ISSUES§ 603.1 Judicial Review of Dismissal of Claim by SSA§ 603.2 Need to Exhaust Administrative Remedies§ 603.3 Record on Appeal§ 603.4 Law of the Case Doctrine§ 603.5 Post Hoc Justification of Administrative Decision§ 603.6 Benefits Pending Review§ 603.7 The Circuit Law to Apply When the Claimant Moves§ 603.8 Writs of Mandamus Against SSA§ 603.9 Relationship Between Concurrent ADA and Social Security Claim§ 603.10 Impact of Changes in Law on Pending Cases§ 603.11 Enforcement of Judgments§ 603.12 Harmless Error§ 603.13 Equitable Tolling

§ 604 FEDERAL COURT PRACTICE§ 604.1 Timeliness of Complaint and Court Appeals§ 604.2 Filing Federal Court Case In Forma Pauperis§ 604.3 Appointment of Counsel§ 604.4 Federal Court Memoranda Seeking Review of Commissioner’s Decision§ 604.5 Oral Argument§ 604.6 Filing Objections to Magistrate Judge’s Report & Recommendations§ 604.7 Time Frames for Remand Proceedings§ 604.8 Calculation of Federal Court Deadlines§ 604.9 Need for Commissioner to File Complete Record§ 604.10 Parties to the Case§ 604.11 Scope of Federal Court Review of Newly Submitted Evidence to

Appeals Council§ 604.12 Rule 60(b) Motions to Set Aside Judgments in Social Security Cases§ 604.13 Attorney Drafting of Magistrate’s Report and Recommendation§ 604.14 Consent to Magistrate§ 604.15 Judicial Notice§ 604.16 Impact of the District Court Failing to Address All Issues § 604.17 Failure to Comply with Circuit Rules § 604.18 Rule 59(e) Motions to Amend Judgments

§ 605 TYPES OF REMAND§ 605.1 Fourth Sentence Remand§ 605.2 Sixth Sentence Remand


§ 606 REMANDS DUE TO NEW EVIDENCE§ 606.1 Statutory Standard Set Forth in 42 U.S.C. § 405(g)§ 606.2 Requirement that Evidence Be “New”§ 606.3 Materiality Requirement§ 606.4 Good Cause Requirement

§ 607 REVERSALS FOR PAYMENT OF BENEFITS§ 607.1 Reversal Warranted Where Entitlement is Clear from the Record§ 607.2 Reversal Warranted Because Claimant’s Impairment Meets a Listing§ 607.3 Reversal Warranted Because Commissioner Failed to Meet Burden of

Proof§ 607.4 Reversal Warranted Due to the Failure to Apply Correct Legal Standards§ 607.5 Denial of Request for Remand for an Award of Benefits§ 607.6 Reversal Warranted Due to Unreasonable Delays

§ 608 SOCIAL SECURITY CLASS ACTION CASES§ 608.1 State Agencies Class Action Cases§ 608.2 Other Disability Class Action Cases§ 608.3 Non-Disability Class Action Cases

§ 700 ATTORNEYS’ FEES

§ 701 FEDERAL COURT FEES UNDER § 406(b)§ 701.1 Entitlement to Fees Under § 406(b) — Generally§ 701.2 § 406(b) Fees: Method of Determining Fee§ 701.3 § 406(b) Fees: Establishing Market Rates§ 701.4 § 406(b) Fees: Documentation of Time§ 701.5 § 406(b) Fees: Need to Explain Basis for Fee Award§ 701.6 § 406(b) Fees: Relationship with EAJA Fees§ 701.7 § 406(b) Fees: Timeliness of Fee Application§ 701.8 § 406(b) Fees: Amount of Fees§ 701.9 § 406(b) Fees: Appellate Review of § 406 Fees§ 701.10 § 406(b) Fees: Pleading Requirements§ 701.11 Attorney Fees in SSI Cases§ 701.12 § 406(b) Fees: Relationship With § 406(a) Fees

§ 702 EQUAL ACCESS TO JUSTICE ACT§ 702.1 Purpose of the EAJA§ 702.2 Duty to File for EAJA Fees§ 702.3 EAJA Pleading Requirements§ 702.4 EAJA: Prevailing Party Requirement§ 702.5 EAJA: Substantial Justification Standard

(Rev. 7, 2/08)

§ 702.6 EAJA: Special Circumstances Exception § 702.7 EAJA: Bad Faith Fees§ 702.8 EAJA: Amount of Award — Hourly Rate§ 702.9 EAJA: Amount of Award — Results Obtained§ 702.10 EAJA: Amount of Award — Hours Claimed§ 702.11 EAJA: Documentation of Time§ 702.12 EAJA: Fees for Law Clerk/Paralegal Time§ 702.13 EAJA: Fees for Outsourced Legal Work§ 702.14 EAJA: Costs Recoverable§ 702.15 EAJA: Fees for Fees§ 702.16 EAJA: Relationship with § 406(b) Fees§ 702.17 EAJA: Timeliness of Fee Application§ 702.18 Appellate Review of EAJA Fees§ 702.19 EAJA: Net Worth Requirement

§ 703 ADMINISTRATIVE ATTORNEYS’ FEES§ 703.1 Amount of Fees§ 703.2 Administrative Attorney’s Fees and Federal Jurisdiction§ 703.3 Impact of Bankruptcy Proceedings on Administrative Attorney’s Fees§ 703.4 § 406(a) Fees: Relationship With § 406(b) Fees

§ 800 SOURCE OF LAW ISSUES

§ 801 SOCIAL SECURITY REGULATIONS

§ 802 SOCIAL SECURITY RULINGS

§ 803 POMS AND HALLEX

§ 804 DICTIONARY OF OCCUPATIONAL TITLES (DOT)

III. ISSUE TOPICS

SEQUENTIAL EVALUATION PROCESS

§ 1103 The Definition of a “Severe Impairment”

§ 1104.5 Medical Equivalence to a Listing: The ALJ’s Responsibility to Obtain Medical ExpertOpinion

§ 1105.1 Cases Citing on SSR 96-8p, Governing the Assessment of RFC in Initial Claims

§ 1105.2 Social Security Ruling 96-9p and the Erosion of the Unskilled Sedentary OccupationalWork Base



(Rev. 8, 6/09)

§ 1105.8 Residual Functional Capacity: Impact of Sit/Stand Option on the Sedentary Work RFC

§ 1105.10 Lack of an Updated or Any Residual Functional Capacity Assessment in the Record

§ 1106.4 Past Relevant Work: Work Performed for Less Than Three Months

§ 1106.6 Past Relevant Work: Work Performed More Than Fifteen Years Prior to the Date ofAdjudication

§ 1107.4 Effect of Borderline Age on the Application of the Medical-Vocational Guidelines(“Grids”)

§ 1107.5 Effect of the Claimant’s Illiteracy on the Application of the Medical-VocationalGuidelines (“Grids”)

§ 1107.7 Effect of Inability to Speak English on the Application of the Medical-VocationalGuidelines (“Grids”)

§ 1107.11 Effect of Borderline Mental Capacity (IQ of 71-79) on the Application of the Medical-Vocational Guidelines (“Grids”)

§ 1107.14 Manipulative Limitations and their Effect on the Ability to Perform the Full Range ofSedentary Work

§ 1107.15 Inability to Stoop and its Effect on the Ability to Perform the Full Range of Sedentary Work

§ 1107.18 Effect of Americans with Disabilities Act Accommodation on the Ability to PerformOther Work

§ 1107.22 Application of the “Worn-Out Worker” Regulation

ASSESSMENT OF DISABILITY ISSUES

§ 1202.6 The ALJ’s Duty to Recontact the Treating Physician Pursuant to § 404.1512(e)

§ 1203.6 Weight of Non-Examining Reviewing Consultant

§ 1203.14 Weight of Evidence from a Chiropractor

§ 1203.15 Weight of Evidence from a Nurse Practitioner

§ 1203.24 Weight of Other Medical Sources Pursuant to SSR 06-03p

§ 1205 Significant Reported Circuit Court Decisions Governing the Analysis of SubjectiveComplaints of Pain

§ 1207.1 Effect of Disability Determinations of Other Agencies

§ 1208.5 Inability to Afford Treatment

§ 1209.3 Onset Date: The Need for a Medical Expert if the Onset Date is Unclear


§ 1210.8 Limitations Contained on the Psychiatric Review Technique Form (“PRTF”) and TheirImpact on Vocational Expert Testimony

§ 1210.12Vocational Expert Testimony Which Conflicts with the Dictionary of OccupationalTitles (“DOT”)

SPECIFIC IMPAIRMENTS

§ 1301.1 Alcohol and Drug Addiction — Effective Date of the 1996 Legislation

§ 1301.2 Establishing Disability Based on Alcohol or Drug Addiction Under New Law

§ 1303 Specific Impairments: Chemical Sensitivity and Environmental Illness and/or LimitationCases

§ 1304 Specific Impairments: Chronic Fatigue Syndrome (CFS)

§ 1307 Specific Impairments: Fibromyalgia

§ 1311.2 Specific Impairments: Disseminated (Systemic) Lupus Erythematosus

§ 1312.5 Mental Impairments: Impact of the ALJ’s Failure to Complete Psychiatric ReviewTechnique Form

§ 1312.9 The Required Severity of the “Other Impairment(s)” Under Listing 12.05(C)

§ 1316.7 Specific Impairments: Reflex Sympathetic Dystrophy, also known as Complex RegionalPain Syndrome

§ 1317 Specific Impairments: Meeting the Deleted Obesity Listing

§ 1317.1 Specific Impairments: the Effect of the Deletion of the Obesity Listing on ClaimantsSuffering from Obesity

ADMINISTRATIVE REVIEW ISSUES

§ 1505 Claimant’s Right to Cross-Examine Post Hearing Evidence — Consultant’s Report

§ 1508 ALJ Bias

FEDERAL COURT ISSUES

§ 1601.1 Waiver: Raising Issues Before the District Court that Were Not Raised by the ClaimantBefore the Administrative Law Judge

§ 1601.2 Waiver: Raising Issues Before the District Court that Were Not Raised Before theAppeals Council

§ 1603.5 Post Hoc Justification: No Monday Morning Quarterbacking Allowed

§ 1604.11 Appeals Council Evidence: How Is Evidence Submitted to the Appeals CouncilConsidered on Judicial Review


(Rev. 8, 6/09)

ATTORNEYS’ FEES

§ 1701.7 Time Limit for Seeking 42 U.S.C. § 406(b) Fees

§ 1701.12Cumulative Cap: Whether the 25% Cap on Attorney Fees Under 42 U.S.C. § 406(b) Is aCumulative Cap on 42 U.S.C. § 406(a) Fees

§ 1701.20 Payee for EAJA Fees

§ 1702.7 Equal Access to Justice Act: Reasonableness of Number of Hours Claimed by Attorney

SOURCE OF LAW

§ 1803.1 Legal Authority: Authority of HALLEX and POMS

LIST OF COMMONLY USED ABBREVIATIONS

AC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeals Council

ADA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Americans with Disabilities Act

ALJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administrative Law Judge

CFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Chronic Fatigue Syndrome

Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner of Social Security

Grids . . . . . . . . . . . . . . . . . . . . . . . . . . . Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2

HALLEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hearings, Appeal and Litigation Law Manual

POMS. . . . . . . . . . . . . . . . . Department of Health and Human Services Program Operation Manual System

PRTF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Psychiatric Review Technique Form

RFC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Residual Functional Capacity

SGA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Substantial Gainful Activity

SSA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Social Security Administration

SSDI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Social Security Disability Insurance

SSI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supplemental Security Insurance

SSR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Social Security Ruling

SVP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specific Vocational Preparation Time

VE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vocational Expert


(Rev. 8, 6/09)

(This page intentionally left blank.)

APPEALS COUNCIL ARGUMENTS OUTLINESUMMARY OF ARGUMENTS

I. CASE UPDATE

II. CASE SURVEY

§ 100 SEQUENTIAL EVALUATION PROCESS

§ 101 DEFINITION OF DISABILITY§ 101.1 Statutory Definition§ 101.2 Purpose of the Social Security Act§ 101.3 Claimant’s Burden to Prove Disability§ 101.4 Evidence Considered in Determining Disability§ 101.5 Duration of Impairments§ 101.6 Childhood Disability Insurance Benefits§ 101.7 Statutory Blindness

§ 102 STEP 1: SUBSTANTIAL GAINFUL ACTIVITY (SGA)§ 102.1 Definition of SGA§ 102.2 Part-Time Work as SGA§ 102.3 Illegal Activity as SGA§ 102.4 Work Activity Which is an Unsuccessful Work Attempt§ 102.5 Return to Work as Part of “Trial Work Period”§ 102.6 Work Performed Under Special Conditions§ 102.7 SGA for Self-Employed Individuals

§ 103 STEP 2: SEVERE IMPAIRMENT§ 103.1 Definition of Severity§ 103.2 Severity: Need to Consider Combined Effect of Impairments§ 103.3 Severity: Need to Consider Subjective Symptoms§ 103.4 Severity: ALJ’s Duty to List all Severe Impairments§ 103.5 ALJ’s Duty to Make Specific Findings Regarding Severity§ 103.6 Effect of Absence of Medical Signs or Diagnosis

§ 104 STEP 3: LISTED IMPAIRMENT§ 104.1 Effect of Impairment Meeting or Equaling a Listing§ 104.2 Meeting a Listing — General§ 104.3 Use of Medical Expert Opinions in Evaluating Whether Listing is Met§ 104.4 Medically Equivalent to a Listing — General


(Rev. 7, 2/08)

TABLE OF CONTENTS

§ 104.5 Medical Equivalence to a Listing: ALJ’s Responsibility to ObtainMedical Expert Opinion

§ 104.6 Medical Equivalence to a Listing: Need to Consider Combined Effect ofImpairments

§ 104.7 ALJ’s Duty to Discuss Whether Impairment(s) Meets/Equals a Listing

§ 105 RESIDUAL FUNCTIONAL CAPACITY (RFC)§ 105.1 Definition of RFC§ 105.2 Definition of Sedentary Work§ 105.3 Definition of Light Work§ 105.4 Definition of Medium Work§ 105.5 Sit/Stand Option and its Impact on RFC§ 105.6 RFC Forms§ 105.7 RFC: Need to Consider All Impairments§ 105.8 RFC: Need to Consider Effect of Mental Impairments§ 105.9 Stress and its Effect on the Ability to Work§ 105.10 Lack of an Updated or Any RFC Assessment in the Record§ 105.11 RFC: Need to Consider Non-Medical Evidence§ 105.12 RFC: Must be Supported by the Record§ 105.13 Absenteeism and its Effect on Ability to Work§ 105.14 RFC: Need to Consider Claimant’s Testimony§ 105.15 RFC: Documentation Requirements § 105.16 Rest Periods and Their Impact on RFC

§ 106 STEP 4: PAST RELEVANT WORK§ 106.1 Claimant’s Burden to Establish Inability to Perform Past Relevant Work§ 106.2 Past Relevant Work — General§ 106.3 ALJ’s Duty to Make Findings Regarding Physical and Mental Demands

of Past Relevant Work§ 106.4 Past Relevant Work: Work Performed for Short Periods of Time§ 106.5 Past Relevant Work: Job Training and Other Work Performed Under

Special Conditions§ 106.6 Past Relevant Work: Work Performed More than Fifteen Years Prior to

the Date of Adjudication§ 106.7 Past Relevant Work: Work No Longer Available§ 106.8 No Need for Vocational Expert at Step Four§ 106.9 Need for Past Relevant Work to be SGA§ 106.10 Composite Jobs

§ 107 STEP 5: OTHER WORK§ 107.1 Commissioner’s Burden to Establish Other Work§ 107.2 Other Work: Need to Consider Combined Effect of Impairments§ 107.3 Use of Medical-Vocational Guidelines, or “Grids”§ 107.4 Effect of Borderline Age on the Application of the Grids


§ 107.5 Evaluation of Illiteracy§ 107.6 Evaluation of Education§ 107.7 Effect of the Inability to Speak English on the Application of the Grids§ 107.8 Skill Levels of Jobs§ 107.9 Transferability of Skills§ 107.10 Application of the Grids to Younger Claimants§ 107.11 Effect of Borderline Mental Capacity on the Application of the Grids§ 107.12 Nonexertional Impairments and their Impact on the Application of Grids§ 107.13 Inability to Perform the Full Range of Work and its Impact on the

Application of the Grids§ 107.14 Manipulative Limitations and their Effect on the Ability to Perform the

Full Range of Sedentary Work§ 107.15 Inability to Stoop and its Effect on the Ability to Perform the Full Range

of Sedentary Work§ 107.16 Need for Vocational Expert Testimony — Presence of Nonexertional

Impairments§ 107.17 Need for Vocational Expert Testimony — Inability to Perform the Full

Range of Work§ 107.18 Effect of ADA on the Ability to Perform Other Work§ 107.19 Significant Number of Jobs in the National Economy§ 107.20 Need to be Able to Engage in Full-Time Work Activities§ 107.21 Claimants Over Age 55 — Special Issues§ 107.22 Application of the “Worn-Out Worker” Regulation

§ 200 ASSESSMENT OF DISABILITY ISSUES

§ 201 MEDICAL IMPROVEMENT ISSUES§ 201.1 Medical Improvement Standard§ 201.2 Medical Improvement: Required in Closed Period of Disability Cases§ 201.3 Medical Improvement: Effect of Participation in Vocational

Rehabilitation Program§ 201.4 Failure to Seek Medical Treatment and its Impact on Medical

Improvement§ 201.5 Basis to Find Medical Improvement§ 201.6 Commissioner’s Burden in Medical Improvement Cases

§ 202 WEIGHT OF TREATING PHYSICIAN’S OPINION§ 202.1 Regulatory Standard Regarding Weight of Treating Physician’s Opinion§ 202.2 Treating Physician Rule by Circuits§ 202.3 Factors Affecting Weight of Treating Physician’s Opinion§ 202.4 Treating Physician’s Opinion Regarding Ultimate Issue of Disability§ 202.5 Retrospective Opinion from Treating Physician§ 202.6 ALJ’s Duty to Develop Evidence from Treating Physician


(Rev. 7, 2/08)

§ 202.7 ALJ’s Duties Regarding Consideration of Evidence from TreatingPhysician

§ 202.8 Need for ALJ to Provide Good Cause for Rejecting Treating Physician’sOpinion

§ 202.9 Basis to Reject Treating Physician’s Opinion§ 202.10 Treating Therapist is an Acceptable Medical Source§ 202.11 Acceptable Medical Sources§ 202.12 Treating Physician’s Opinion Regarding Ability to Obtain Employment

§ 203 WEIGHT OF THE EVIDENCE§ 203.1 The ALJ’s Duty to Weigh All the Evidence§ 203.2 Weight of Uncontroverted Medical Evidence§ 203.3 Evaluating the Weight of Any Medical Opinion§ 203.4 Weight of Treating Physician v. Consulting Physician§ 203.5 Weight of Treating Physician v. Non-Examining Physician§ 203.6 Weight of the Non-Examining Reviewing Consultant§ 203.7 Weight of Examining Physician v. Non-Examining Physician§ 203.8 Weight of Specialist v. Non-Specialist§ 203.9 Retrospective Diagnosis by Physicians§ 203.10 Weight of Recent Medical Evidence§ 203.11 Rejection of Medical Opinion Which is Based on Symptomology§ 203.12 Rejection of Physician’s Opinion Secured by an Attorney§ 203.13 Weight of an Unsigned Medical Report from Consulting Physician§ 203.14 Weight of Evidence from a Chiropractor§ 203.15 Weight of Evidence from a Nurse Practitioner§ 203.16 ALJ Cannot Substitute His or Her Own Opinion for Medical Expert’s

Opinion§ 203.17 Weight of Testimony of Lay Witnesses§ 203.18 Weight of Evidence from a Podiatrist§ 203.19 Weight of Evidence from a Mental Health Counselor§ 203.20 Duty to Recontact Consultative Physician § 203.21 Weight of Opinion Based on a Review of All the Evidence§ 203.22 Weight and Admissibility of Investigative Reports/Surveillance Tapes§ 203.23 Rejection of Impairment Because Cause of Impairment is Unknown

§ 204 CREDIBILITY§ 204.1 Need for Credibility Findings§ 204.2 ALJ’s Credibility Findings Entitled to Deference§ 204.3 Factors to Consider in Making Credibility Determinations§ 204.4 Discrediting Testimony Based on Inconsistencies in the Record§ 204.5 Discrediting Testimony Based on the Motives of Witnesses§ 204.6 Lack of Medical Treatment and Credibility§ 204.7 Work History and Credibility


§ 204.8 Daily Activities and Impact on Credibility§ 204.9 Medical Regimen and Impact on Credibility§ 204.10 Lack of Objective Medical Evidence and Credibility§ 204.11 Credibility and Medical Opinion that Claimant is Exaggerating§ 204.12 Credibility Findings Based on Errors of Fact or Logic

§ 205 EVALUATION OF COMPLAINTS OF PAIN AND OTHER SUBJECTIVE SYMPTOMS§ 205.1 Statutory and Regulatory Pain Standard§ 205.2 Pain Standard by Circuits§ 205.3 Application of the Pain Standard to Other Subjective Symptoms§ 205.4 Pain Testimony Supported by Medical Evidence Must be Afforded Great

Weight§ 205.5 Rejecting Subjective Complaints Based on the Lack of Objective

Evidence§ 205.6 Rejecting Subjective Complaints Based on Inconsistencies in the Record§ 205.7 Rejecting Subjective Complaints Based on the Failure to Seek Medical

Treatment§ 205.8 Rejecting Subjective Complaints Based on the Failure to Take

Prescription Medication§ 205.9 Rejecting Subjective Complaints Based on Daily Activities§ 205.10 Need to Provide Specific Reasons for Rejecting Subjective Symptom

Testimony§ 205.11 Need to Consider Episodic Nature of Subjective Symptoms§ 205.12 Need to Consider Side Effects of Medication in Evaluating Subjective

Symptom Testimony§ 205.13 Effect of Failing to Provide Sufficient Reasons for Rejecting Subjective

Symptom Testimony§ 205.14 Pain and Medical Opinion that Claimant is Exaggerating§ 205.15 Need to Consider Non-Medical Evidence in Evaluating Subjective

Symptoms§ 205.16 Sit and Squirm Jurisprudence§ 205.17 Need to Consider Psychological Basis for Pain Complaints

§ 206 COMBINATION OF IMPAIRMENTS§ 206.1 Need to Consider the Combination of Impairments§ 206.2 Effect of Failing to Consider Each Severe Impairment

§ 207 EFFECT OF OPINIONS OF OTHER AGENCIES ON DISABILITYDETERMINATIONS§ 207.1 Effect of Disability Determinations of Other Agencies§ 207.2 Effect of Receipt of Unemployment Compensation

§ 208 FAILURE TO FOLLOW PRESCRIBED TREATMENT§ 208.1 Failure to Follow Treatment as a Basis for Denial of Benefits§ 208.2 Refusal to Follow Prescribed Treatment Must Be Willful


(Rev. 7, 2/08)

§ 208.3 Following Treatment Must Restore Claimant’s Ability to Work§ 208.4 ALJ’s Duty to Investigate Reasons for Claimant’s Alleged

Noncompliance with Treatment§ 208.5 Inability to Afford Treatment

§ 209 ONSET DATE§ 209.1 Establishing Onset§ 209.2 Retrospective Opinion of Onset§ 209.3 Need for a Medical Advisor if the Onset Date Is Unclear§ 209.4 Need to Consider Other Evidence of Onset

§ 210 VOCATIONAL EXPERT TESTIMONY§ 210.1 Purpose of VE Testimony§ 210.2 Weight of Examining VE Evidence§ 210.3 ALJ Must Pose a Complete Hypothetical Question to the VE§ 210.4 Hypothetical Question Must Be Supported by the Record§ 210.5 Effect of Incomplete Hypothetical Question§ 210.6 Effect of Complete Hypothetical Question§ 210.7 Need to Raise Issue of Incomplete Hypothetical Question to ALJ§ 210.8 Mental Health Limitations and Their Impact on VE Testimony§ 210.9 Need for VE to Testify Regarding Claimant’s Ability to Engage in Full-

Time Work§ 210.10 Specific Vocational Preparation (“SVP”) as Set Forth in the DOT§ 210.11 Language/Math/Reading Skills Required to Perform Jobs as Set Forth in

the DOT§ 210.12 VE Testimony Which Conflicts with the DOT§ 210.13 VE Testimony Which Relies on the ADA§ 210.14 Effect of ALJ’s Mischaracterization of VE Testimony§ 210.15 Need for VE to use Reliable Methods in Forming Opinions§ 210.16 Reasoning Skills Required to Perform Jobs as Set Forth in the DOT

§ 211 MEDICAL EXPERT TESTIMONY§ 211.1 Need to Consider Medical Expert Testimony§ 211.2 Use of Medical Expert Who Had Prior Connection with Claim§ 211.3 Weight of Medical Expert’s Testimony§ 211.4 Need for Medical Expert at Hearing§ 211.5 Need for ME to Review All Medical Records§ 211.6 Need to Challenge ME’s Qualifications at the Hearing§ 211.7 Selection of Medical Expert

§ 212 CHILDREN’S SSI CLAIMS§ 212.1 1996 Changes to Children’s SSI Disability Statute: Overview§ 212.2 Effect of Changes to Children’s SSI Disability Statute & Regulations on

Applicants and Recipients


§ 212.3 Step 1: Substantial Gainful Activity by Children§ 212.4 Step 2: Severity of Childhood Impairments§ 212.5 Step 3: Meeting a Childhood Listing§ 212.6 Step 3: Medical Equivalency to a Childhood Listing§ 212.7 Step 3: Functional Equivalency to a Childhood Listing§ 212.8 SSI Children’s Claims: Evaluation of Adolescents§ 212.9 SSI Children’s Claims: Cases Decided Under Old Law§ 212.10 SSI Children’s Claims: Testimony of Parents§ 212.11 SSI Children’s Claims: School Records§ 212.12 SSI Children’s Claims: Use of Standardized Testing§ 212.13 Duration Requirement in Child’s SSI Claims

§ 300 SPECIFIC IMPAIRMENTS ISSUES

§ 301 ALCOHOLISM AND DRUG ADDICTION§ 301.1 Alcoholism and Drug Addiction: Effective Date of 1996 Legislation§ 301.2 Alcoholism or Drug Addiction as a Material Contributing Factor§ 301.3 Establishing Disability Based on Alcoholism Under the Old Law§ 301.4 Establishing Disability Based on Drug Addiction Under the Old Law§ 301.5 Evaluation of Fetal Alcohol Syndrome§ 301.6 Burden of Proof: Alcoholism or Drug Addiction as a Material

Contributing Factor

§ 302 CARDIOVASCULAR IMPAIRMENTS§ 302.1 Evaluation of Hypertension§ 302.2 Evaluation of Heart Impairments

§ 303 CHEMICAL SENSITIVITY AND ENVIRONMENTAL ISSUES AND/OR LIMITATION CASES§ 303.1 Evaluation of Chemical Sensitivity Impairments

§ 304 CHRONIC FATIGUE SYNDROME (CFS)§ 304.1 CFS Is a Medical Determinable Impairment§ 304.2 Evaluation of CFS§ 304.3 CFS: Objective Findings Not Necessary§ 304.4 Need to Consider Agency Policy in Evaluating CFS

§ 305 DIGESTIVE SYSTEM IMPAIRMENTS§ 305.1 Evaluation of Crohn’s Disease§ 305.2 Evaluation of Other Digestive System Impairments

§ 306 ENDOCRINE IMPAIRMENTS (EXCEPT OBESITY)§ 306.1 Evaluation of Thyroid Impairments§ 306.2 Evaluation of Diabetes


(Rev. 7, 2/08)

§ 307 FIBROMYALGIA§ 307.1 Fibromyalgia is a Medically Determinable Impairment§ 307.2 Fibromyalgia: Credibility of Complaints of Pain§ 307.3 Evaluation of Fibromyalgia

§ 308 GENITO-URINARY SYSTEM IMPAIRMENTS§ 308.1 Evaluation of Urinary and Bowel Problems§ 308.2 Evaluation of Nephrotic Syndrome

§ 309 GROWTH IMPAIRMENTS (CHILDHOOD LISTINGS)

§ 310 HEMIC AND LYMPHATIC SYSTEM IMPAIRMENTS§ 310.1 Evaluation of Sickle Cell Anemia

§ 311 IMMUNE SYSTEM IMPAIRMENTS§ 311.1 Evaluation of AIDS/HIV Infection§ 311.2 Evaluation of Lupus§ 311.3 Evaluation of Connective Tissue Disorders§ 311.4 Evaluation of Hodgkin’s Disease

§ 312 MENTAL IMPAIRMENTS§ 312.1 Claimant’s Burden to Establish Existence of Mental Impairment§ 312.2 Duty to Develop Record Regarding Mental Impairments§ 312.3 Severity of Mental Impairments — General§ 312.4 Limitations Contained on Mental RFC Forms§ 312.5 Required Completion of the Psychiatric Review Technique Form

(“PRTF”)§ 312.6 Evaluation of Organic Mental Disorders§ 312.7 Evaluation of Psychotic Illnesses§ 312.8 Evaluation of Affective Disorders§ 312.9 Evaluation of Mental Retardation§ 312.10 Evaluation of Anxiety§ 312.11 Evaluation of Attention Deficit Hyperactivity Disorder (“ADHD”)§ 312.12 Validity of IQ Scores§ 312.13 Evaluation of Mental Retardation in Children§ 312.14 Evaluation of Somatoform Disorders/Chronic Pain Syndrome§ 312.15 Evaluation of Personality Disorders§ 312.16 Psychological Testing§ 312.17 Evaluation of Borderline Intellectual Functioning§ 312.18 Impairments Other Than ADHD Causing Attention and Impulsivity

Problems§ 312.19 GAF Scores

§ 313 MUSCULOSKELETAL IMPAIRMENTS§ 313.1 Evaluation of Arthritis


§ 313.2 Evaluation of Back Impairments§ 313.3 Evaluation of Amputations§ 313.4 Evaluation of Other Musculoskeletal Impairments

§ 314 MULTIPLE BODY SYSTEMS (CHILDHOOD LISTINGS)

§ 315 NEOPLASTIC DISEASES

§ 316 NEUROLOGICAL IMPAIRMENTS§ 316.1 Evaluation of Epilepsy§ 316.2 Evaluation of Parkinson’s Disease§ 316.3 Evaluation of Multiple Sclerosis§ 316.4 Evaluation of Migraine Headaches§ 316.5 Evaluation of Post Polio Impairments§ 316.6 Evaluation of Strokes§ 316.7 Evaluation of Cerebral Palsy§ 316.8 Evaluation of Muscular Dystrophy

§ 317 OBESITY LISTING§ 317.1 Obesity Listing: Old Cases Decided Under Repealed Listing 9.09 § 317.2 Effect of Repeal of Obesity Listing§ 317.3 Evaluation of Obesity Under SSR-02-01p§ 317.4 Effect of Obesity on Other Impairments

§ 318 RESPIRATORY IMPAIRMENTS§ 318.1 Evaluation of Asthma§ 318.2 Evaluation of Other Respiratory Impairments

§ 319 SKIN IMPAIRMENTS

§ 320 SPECIAL SENSES AND SPEECH IMPAIRMENTS§ 320.1 Visual Impairments§ 320.2 Speech Impairments

§ 400 NON DISABILITY ISSUES

§ 401 SOCIAL SECURITY INSURANCE BENEFITS: ELIGIBILITY ISSUES§ 401.1 Quarters of Coverage — Generally§ 401.2 Quarters of Coverage — Self-Employed Workers§ 401.3 Amending Earnings Records§ 401.4 Family Maximum§ 401.5 Benefit Amounts§ 401.6 Earnings Limits§ 401.7 Proof of Age§ 401.8 Payment of Disability Insurance Benefits to Non-Citizens


(Rev. 7, 2/08)

§ 402 REDUCTION/SUSPENSION OF SOCIAL SECURITY INSURANCE BENEFITS§ 402.1 Workers’ Compensation Offsets§ 402.2 Reductions in Benefits due to Receipt of Federal, State or Local Pension§ 402.3 Nonpayment of Benefits to Persons in Prisons§ 402.4 Nonpayment of Benefits to Persons in Prisons: Vocational Rehabilitation

Exception§ 402.5 Anti-Assignment Clause§ 402.6 Nonpayment of Benefits to Fleeing Felons§ 402.7 Windfall Offset Provisions§ 402.8 Reduction Due to Excess Earnings

§ 403 RETIREMENT BENEFITS§ 403.1 Burden to Establish Retirement§ 403.2 Fictitious Family Salary Arrangements

§ 404 BENEFITS FOR SPOUSES§ 404.1 Spouse Relationship — Generally§ 404.2 Spouse Relationship — State Law§ 404.3 Deemed Valid Marriage§ 404.4 Divorced Spouses§ 404.5 Widow’s Benefits

§ 405 BENEFITS FOR CHILDREN§ 405.1 Child Relationship — Generally§ 405.2 Child Relationship — Dependency Requirement§ 405.3 Child Relationship — State Inheritance Laws§ 405.4 Child Relationship — Acknowledgment in Writing§ 405.5 Child Relationship — Court Order of Paternity§ 405.6 Child Relationship — Evidence of Paternity and Living with or

Supporting Child§ 405.7 Benefits for Adopted Children§ 405.8 Benefits for Stepchildren§ 405.9 Benefits for Grandchildren and Stepgrandchildren§ 405.10 Child Relationship – Country of Domicile

§ 406 BENEFITS FOR PARENTS§ 406.1 Parent’s Insurance Benefits

§ 407 SSI ELIGIBILITY ISSUES§ 407.1 Purpose of SSI Program§ 407.2 Conditions of Eligibility — Generally§ 407.3 Citizenship/Legal Residency Rules§ 407.4 Age Requirement


§ 408 SSI INCOME RULES§ 408.1 Definition of Income§ 408.2 In-Kind Support and Maintenance — Generally§ 408.3 In-Kind Support and Maintenance — Rental Subsidies§ 408.4 Deeming of Income§ 408.5 SSI Benefit Amounts§ 408.6 SSI: Windfall Offset Provisions§ 408.7 SSI: Anti-Assignment Clause§ 408.8 Non-Payment of SSI Benefits to Persons in Institutions

§ 409 SSI RESOURCE RULES§ 409.1 Definition of Resource§ 409.2 Resource Exclusions — Generally§ 409.3 Resource Exclusions — Trusts§ 409.4 Resource Exclusions — Conservatory Accounts§ 409.5 Resource Exclusions: Life Insurance§ 409.6 Resource Exclusions: PASS Plans

§ 410 OVERPAYMENTS§ 410.1 Liability for Overpayments — Generally§ 410.2 Liability for Overpayments — Representative Payees§ 410.3 Waiver of Overpayments — Generally§ 410.4 Waiver of Overpayments — Burden of Proof§ 410.5 Waiver of Overpayments — Fault§ 410.6 Waiver of Overpayments — Defeat the Purpose of the Act§ 410.7 Waiver of Overpayments — Against Equity and Good Conscience§ 410.8 Waiver of Overpayments — Credibility Determinations

§ 411 REPRESENTATIVE PAYEES§ 411.1 Representative Payee — Generally§ 411.2 Order of Preference in Selecting Payees§ 411.3 Duties of the Representative Payee§ 411.4 Misuse of Benefits by Representative Payee

§ 500 ADMINISTRATIVE REVIEW ISSUES

§ 501 FILING OF APPLICATION AND APPEALS§ 501.1 Need to File Application for Benefits§ 501.2 Timing of Application§ 501.3 Period of Time Effected by Application§ 501.4 Duty to Advise Claimant of Need to File Application§ 501.5 Timely Filing of Administrative Appeals


(Rev. 7, 2/08)

§ 501.6 Adequacy of Social Security Notices§ 501.7 Effect of Subsequent Approval of Claim for Benefits on Pending Claim § 501.8 Misinformation and Retroactive Application

§ 502 RIGHT TO COUNSEL§ 502.1 Claimant’s Statutory Right to Counsel§ 502.2 Waiver of Right to Counsel§ 502.3 Need to Show Prejudice by Lack of Representation

§ 503 HEARING PROCEDURES§ 503.1 Pre-Hearing Procedures§ 503.2 Right to Appear at a Hearing§ 503.3 Notification of Issues at Hearing§ 503.4 Non-adversarial Nature of Hearing§ 503.5 Right to Subpoena — General§ 503.6 Right to Subpoena and Cross-Examine Those Who Submit Pre-Hearing

Reports§ 503.7 Waiver of Right to Subpoena and Cross-Examine Those Who Submit

Pre-Hearing Reports§ 503.8 Consideration of Non-Record Evidence§ 503.9 Notice of Hearing Decision§ 503.10 ALJ’s Duty to Follow Remand Orders§ 503.11 ALJ’s Authority to Hear Case § 503.12 Right of Non-Attorney Parent to Represent Child in SSI Child’s Claim§ 503.13 Closing the Record§ 503.14 Notification of Reliance on SSR Instead of Individualized Determination§ 503.15 Waiver of Right to Appear at a Hearing

§ 504 ALJ’S DUTY TO DEVELOP THE RECORD§ 504.1 ALJ’s Duty to Develop Record — General§ 504.2 Heightened Duty When Claimant Not Represented by Counsel§ 504.3 Heightened Duty When Claimant Has Mental Impairments§ 504.4 Duty to Obtain All Pertinent, Available Records§ 504.5 Duty to Elicit Testimony from Witnesses§ 504.6 Duty to Order Consultative Examination§ 504.7 Duty to Consider the Side Effects of Medications§ 504.8 Duty to Obtain Medical Source Statements

§ 505 CLAIMANT’S RIGHT TO EXAMINE POST-HEARING EVIDENCE§ 505.1 The ALJ is Permitted to Obtain Post-Hearing Evidence§ 505.2 Right to Cross-Examine Those Who Submit Post-Hearing Evidence§ 505.3 Waiver of the Right to Subpoena and Cross-Examine Those Who Submit

Post-Hearing Reports


§ 506 RES JUDICATA/COLLATERAL ESTOPPEL§ 506.1 Res Judicata§ 506.2 Doctrine of Collateral Estoppel

§ 507 REOPENINGS§ 507.1 Regulatory Basis to Reopen Prior Claims§ 507.2 Good Cause for Reopening Prior Claims§ 507.3 Faulty SSA Notices Warrant Reopening at Any Time

§ 508 ALJ BIAS§ 508.1 ALJ Must Afford Claimant a Full and Fair Hearing§ 508.2 Need to Present Bias Claim Administratively§ 508.3 If Bias Found, Case Should Be Heard by Different ALJ on Remand§ 508.4 ALJ Bias and Due Process Violation

§ 509 APPEALS COUNCIL REVIEW§ 509.1 Timeliness of Requesting Appeals Council Review§ 509.2 Scope of Appeals Council Review§ 509.3 New Evidence Submitted to the Appeals Council§ 509.4 Basis to Deny Appeals Council Review§ 509.5 Loss of Underlying Claim File by Appeals Council§ 509.6 Appeals Council’s Duty to Develop Record§ 509.7 Impact of Appeals Council’s Denial of Review

§ 600 FEDERAL COURT ISSUES

§ 601 WAIVER OF RIGHT TO RAISE ISSUES§ 601.1 Waiver: Failure to Raise Issues Administratively§ 601.2 Waiver: Failure to Properly Raise Issues in Federal Court

§ 602 JUDICIAL REVIEW OF DENIAL OF REOPENING REQUEST§ 602.1 Denials of Reopening Requests Generally Not Subject to Judicial

Review§ 602.2 Exception to Reopening: Claimant Raises a Constitutional Challenge§ 602.3 Exception to Reopening: ALJ Reconsiders the Evidence of the Prior Claim

§ 603 OTHER PROCEDURAL ISSUES§ 603.1 Judicial Review of Dismissal of Claim by SSA§ 603.2 Need to Exhaust Administrative Remedies§ 603.3 Record on Appeal§ 603.4 Law of the Case Doctrine§ 603.5 Post Hoc Justification of Administrative Decision§ 603.6 Benefits Pending Review§ 603.7 The Circuit Law to Apply When the Claimant Moves


(Rev. 7, 2/08)

§ 603.8 Writs of Mandamus Against SSA§ 603.9 Relationship Between Concurrent ADA and Social Security Claim§ 603.10 Impact of Changes in Law on Pending Cases§ 603.11 Enforcement of Judgments§ 603.12 Harmless Error§ 603.13 Equitable Tolling

§ 604 FEDERAL COURT PRACTICE§ 604.1 Timeliness of Complaint and Court Appeals§ 604.2 Filing Federal Court Case In Forma Pauperis§ 604.3 Appointment of Counsel§ 604.4 Federal Court Memoranda Seeking Review of Commissioner’s Decision§ 604.5 Oral Argument§ 604.6 Filing Objections to Magistrate Judge’s Report & Recommendations§ 604.7 Time Frames for Remand Proceedings§ 604.8 Calculation of Federal Court Deadlines§ 604.9 Need for Commissioner to File Complete Record§ 604.10 Parties to the Case§ 604.11 Scope of Federal Court Review of Newly Submitted Evidence to

Appeals Council§ 604.12 Rule 60(b) Motions to Set Aside Judgments in Social Security Cases§ 604.13 Attorney Drafting of Magistrate’s Report and Recommendation§ 604.14 Consent to Magistrate§ 604.15 Judicial Notice§ 604.16 Impact of the District Court Failing to Address All Issues § 604.17 Failure to Comply with Circuit Rules § 604.18 Rule 59(e) Motions to Amend Judgments

§ 605 TYPES OF REMAND§ 605.1 Fourth Sentence Remand§ 605.2 Sixth Sentence Remand

§ 606 REMANDS DUE TO NEW EVIDENCE§ 606.1 Statutory Standard Set Forth in 42 U.S.C. § 405(g)§ 606.2 Requirement that Evidence Be “New”§ 606.3 Materiality Requirement§ 606.4 Good Cause Requirement

§ 607 REVERSALS FOR PAYMENT OF BENEFITS§ 607.1 Reversal Warranted Where Entitlement is Clear from the Record§ 607.2 Reversal Warranted Because Claimant’s Impairment Meets a Listing§ 607.3 Reversal Warranted Because Commissioner Failed to Meet Burden of

Proof


§ 607.4 Reversal Warranted Due to the Failure to Apply Correct Legal Standards§ 607.5 Denial of Request for Remand for an Award of Benefits§ 607.6 Reversal Warranted Due to Unreasonable Delays

§ 608 SOCIAL SECURITY CLASS ACTION CASES§ 608.1 State Agencies Class Action Cases§ 608.2 Other Disability Class Action Cases§ 608.3 Non-Disability Class Action Cases

§ 700 ATTORNEYS’ FEES

§ 701 FEDERAL COURT FEES UNDER § 406(b)§ 701.1 Entitlement to Fees Under § 406(b) — Generally§ 701.2 § 406(b) Fees: Method of Determining Fee§ 701.3 § 406(b) Fees: Establishing Market Rates§ 701.4 § 406(b) Fees: Documentation of Time§ 701.5 § 406(b) Fees: Need to Explain Basis for Fee Award§ 701.6 § 406(b) Fees: Relationship with EAJA Fees§ 701.7 § 406(b) Fees: Timeliness of Fee Application§ 701.8 § 406(b) Fees: Amount of Fees§ 701.9 § 406(b) Fees: Appellate Review of § 406 Fees§ 701.10 § 406(b) Fees: Pleading Requirements§ 701.11 Attorney Fees in SSI Cases§ 701.12 § 406(b) Fees: Relationship With § 406(a) Fees

§ 702 EQUAL ACCESS TO JUSTICE ACT§ 702.1 Purpose of the EAJA§ 702.2 Duty to File for EAJA Fees§ 702.3 EAJA Pleading Requirements§ 702.4 EAJA: Prevailing Party Requirement§ 702.5 EAJA: Substantial Justification Standard§ 702.6 EAJA: Special Circumstances Exception § 702.7 EAJA: Bad Faith Fees§ 702.8 EAJA: Amount of Award — Hourly Rate§ 702.9 EAJA: Amount of Award — Results Obtained§ 702.10 EAJA: Amount of Award — Hours Claimed§ 702.11 EAJA: Documentation of Time§ 702.12 EAJA: Fees for Law Clerk/Paralegal Time§ 702.13 EAJA: Fees for Outsourced Legal Work§ 702.14 EAJA: Costs Recoverable§ 702.15 EAJA: Fees for Fees§ 702.16 EAJA: Relationship with § 406(b) Fees


(Rev. 7, 2/08)

§ 702.17 EAJA: Timeliness of Fee Application§ 702.18 Appellate Review of EAJA Fees§702.19 EAJA: Net Worth Requirement

§ 703 ADMINISTRATIVE ATTORNEYS’ FEES§ 703.1 Amount of Fees§ 703.2 Administrative Attorney’s Fees and Federal Jurisdiction§ 703.3 Impact of Bankruptcy Proceedings on Administrative Attorney’s Fees§ 703.4 § 406(a) Fees: Relationship With § 406(b) Fees

§ 800 SOURCE OF LAW ISSUES

§ 801 SOCIAL SECURITY REGULATIONS

§ 802 SOCIAL SECURITY RULINGS

§ 803 POMS AND HALLEX

§ 804 DICTIONARY OF OCCUPATIONAL TITLES (DOT)

III. ISSUE TOPICS

SEQUENTIAL EVALUATION PROCESS

§ 1103 The Definition of a “Severe Impairment”

§ 1104.5 Medical Equivalence to a Listing: The ALJ’s Responsibility to Obtain Medical ExpertOpinion

§ 1105.1 Cases Citing on SSR 96-8p, Governing the Assessment of RFC in Initial Claims

§ 1105.2 Social Security Ruling 96-9p and the Erosion of the Unskilled Sedentary OccupationalWork Base

§ 1105.8 Residual Functional Capacity: Impact of Sit/Stand Option on the Sedentary Work RFC

§ 1105.10 Lack of an Updated or Any Residual Functional Capacity Assessment in the Record

§ 1106.4 Past Relevant Work: Work Performed for Less Than Three Months

§ 1106.6 Past Relevant Work: Work Performed More Than Fifteen Years Prior to the Date ofAdjudication

§ 1107.4 Effect of Borderline Age on the Application of the Medical-Vocational Guidelines(“Grids”)

§ 1107.5 Effect of the Claimant’s Illiteracy on the Application of the Medical-VocationalGuidelines (“Grids”)


§ 1107.7 Effect of Inability to Speak English on the Application of the Medical-VocationalGuidelines (“Grids”)

§ 1107.11 Effect of Borderline Mental Capacity (IQ of 71-79) on the Application of the Medical-Vocational Guidelines (“Grids”)

§ 1107.14 Manipulative Limitations and their Effect on the Ability to Perform the Full Range ofSedentary Work

§ 1107.15 Inability to Stoop and its Effect on the Ability to Perform the Full Range of Sedentary Work

§ 1107.18 Effect of Americans with Disabilities Act Accommodation on the Ability to PerformOther Work

§ 1107.22 Application of the “Worn-Out Worker” Regulation

ASSESSMENT OF DISABILITY ISSUES

§ 1202.6 The ALJ’s Duty to Recontact the Treating Physician Pursuant to § 404.1512(e)

§ 1203.6 Weight of Non-Examining Reviewing Consultant

§ 1203.14 Weight of Evidence from a Chiropractor

§ 1203.15 Weight of Evidence from a Nurse Practitioner

§ 1203.24 Weight of Other Medical Sources Pursuant to SSR 06-03p

§ 1205 Significant Reported Circuit Court Decisions Governing the Analysis of SubjectiveComplaints of Pain

§ 1207.1 Effect of Disability Determinations of Other Agencies

§ 1208.5 Inability to Afford Treatment

§ 1209.3 Onset Date: The Need for a Medical Expert if the Onset Date is Unclear

§ 1210.8 Limitations Contained on the Psychiatric Review Technique Form (“PRTF”) and TheirImpact on Vocational Expert Testimony

§ 1210.12 Vocational Expert Testimony Which Conflicts with the Dictionary of OccupationalTitles (“DOT”)

SPECIFIC IMPAIRMENTS

§ 1301.1 Alcohol and Drug Addiction — Effective Date of the 1996 Legislation

§ 1301.2 Establishing Disability Based on Alcohol or Drug Addiction Under New Law

§ 1303 Specific Impairments: Chemical Sensitivity and Environmental Illness and/orLimitation Cases


(Rev. 8, 6/09)

§ 1304 Specific Impairments: Chronic Fatigue Syndrome (CFS)

§ 1307 Specific Impairments: Fibromyalgia

§ 1311.2 Specific Impairments: Disseminated (Systemic) Lupus Erythematosus

§ 1312.5 Mental Impairments: Impact of the ALJ’s Failure to Complete Psychiatric ReviewTechnique Form

§ 1312.9 The Required Severity of the “Other Impairment(s)” Under Listing 12.05(C)

§ 1316.7 Specific Impairments: Reflex Sympathetic Dystrophy, also known as ComplexRegional Pain Syndrome

§ 1317 Specific Impairments: Meeting the Deleted Obesity Listing

§ 1317.1 Specific Impairments: the Effect of the Deletion of the Obesity Listing on ClaimantsSuffering from Obesity

ADMINISTRATIVE REVIEW ISSUES

§ 1505 Claimant’s Right to Cross-Examine Post Hearing Evidence — Consultant’s Report

§ 1508 ALJ Bias

FEDERAL COURT ISSUES

§1601.1 Waiver: Raising Issues Before the District Court that Were Not Raised by the ClaimantBefore the Administrative Law Judge

§ 1601.2 Waiver: Raising Issues Before the District Court that Were Not Raised Before theAppeals Council

§ 1603.5 Post Hoc Justification: No Monday Morning Quarterbacking Allowed

§ 1604.11 Appeals Council Evidence: How Is Evidence Submitted to the Appeals CouncilConsidered on Judicial Review

ATTORNEYS’ FEES

§ 1701.7 Time Limit for Seeking 42 U.S.C. § 406(b) Fees

§ 1701.12 Cumulative Cap: Whether the 25% Cap on Attorney Fees Under 42 U.S.C. § 406(b) Isa Cumulative Cap on 42 U.S.C. § 406(a) Fees

§ 1701.20 Payee for EAJA Fees

§ 1702.7 Equal Access to Justice Act: Reasonableness of Number of Hours Claimed by Attorney

SOURCE OF LAW

§ 1803.1 Legal Authority: Authority of HALLEX and POMS


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