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  • William J. La Croix

Am I "qualified" for benefits?


From pages 7 to 11 of my book [Social Security Disability: A Lawyer's Personal Perspective, Second Edition, 2013; 2019 updates noted in bold, unitalicized text]:



This question begs another question, which is: do you have a severe impairment that

has, or will, prevent you from working at a Substantially Gainful level of Activity (usually

employment) for one year or longer on a sustained basis? (Substantially Gainful Activity

or SGA is now $1,000.00 per month.)


To take the simplest part first, one year is from, for example, January 1, 2010 until December 31, 2010 not until December 30, 2010. Sounds pretty obvious, but, as I said, I am sharing years of experience with you. As the old saying goes, close only counts in horseshoes or with hand grenades. This is called the “duration” requirement. Claims are sometimes denied at the Initial and Reconsideration level by the Department of Disability Determination Services (DDS) because the examiner does not believe the impairment will last for one year. Given that it usually takes more than a year to get a hearing scheduled, which will be discussed further, this usually, absent significant medical improvement (and/or work activity),

becomes a non-issue.


The more difficult part is that of establishing, with longitudinal, objective medical

evidence that your impairment(s) prevent or limit you from performing activities

associated with employment. Even if the evidence does establish limitations, the

person adjudicating your claim needs to determine, particularly for younger individuals,

that those limitations preclude all work activity in the competitive national economy.

Longitudinal medical evidence simply means that evidence from an acceptable

medical source exists relating to your impairments, exists for the period for which you

are claiming disability, and, further, that evidence is objective. Objective medical

evidence is based on an acceptable medical source’s examinations and tests.


Social Security Regulations define an acceptable medical source to be a Medical

Doctor (M.D.), a Doctor of Osteopathy (D.O.), or a Licensed Clinical Psychologist

(Psychiatrists fall under the M.D. and D.O. categories). For some impairments related

to feet, Doctors of Podiatric Medicine (D.P.M.) are acceptable medical sources for those

specific impairments. Similarly, for some impairments related to vision, particularly

fields of vision and visual acuity, optometrists are acceptable medical sources as are

audiologists for hearing impairments.


What if your care is primarily from a non-acceptable medical source such as a nurse

practitioner? First, many of these sources are reluctant to evaluate your limitations

because somebody has told them that they are not acceptable medical sources and

their opinions will be given little or no weight by SSA. That is not necessarily true,

especially if you have seen the person frequently and his or her opinions are supported

by, or consistent with, better evidence and explanations than an acceptable medical

source in the record.


Not all medical sources, acceptable and unacceptable, are treating sources in terms of

SSA Regulations and Rulings. A treating source is generally someone with whom a

claimant has a continuing treating relationship that involves examinations, tests,

therapy and so on. Each specific fact situation dictates how long and how often a

claimant needs to see a medical source before that person becomes a treating source

in the SSA sense of the word. A physician who does an examination at a single point in

time, sometimes to treat an acute condition, is not usually a treating source in the

sense of this discussion (which is why repeated visits to the emergency room don’t

usually carry much weight if unrelated to a condition getting required and continuing

treatment). The key point here is that a well-supported medical opinion of a treating

source must be given controlling weight by SSA if it is not inconsistent with other

substantial evidence in the record.


There are three things to note before going on. As you will see when we get to the five-

step evaluation, Social Security does not necessarily consider a person disabled if he

or she cannot do their past work. In the simplest sense, Social Security will not find a

person disabled under 50 years old if it determines that he or she can perform

unskilled work that only requires lifting up to ten pounds, sitting six hours (with position

changes) a day, standing/walking two hours a day with fewer than two absences a

month. The second point is that a lot of claimants know, or know of, somebody who is

on the benefits “with nothing wrong with him/her” or got on the benefits in just a few

months.


There may be a lot of other factors such as age and education as well as not readily

apparent impairments in his or her claim. Perhaps there was more evidence to be

evaluated in support of the claim. In short, it’s his or her claim, not your claim. The third

point is that, with five or so exceptions, every client I have ever had, in my own belief, has

honestly believed he or she is disabled from working. My belief is based on the simple

and logical facts that most people are inherently honest and would rather be working.

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