SSA medical issue

[chris]

Here's a practical question that is probably old and boring to those of you who have litigated and presided over numerous SSA hearings, but exactly how do you deal with a case where there is no objective evidence of a medical problem yet the worker testifies credibly as to disabling pain?

I haven't been involved in litigating medical issues for about 15 years so if I ever do become an ALJ for SSA, I will have much to learn on the medical front.

Thanks,

Chris

[counselor95]

The regulations provide there must be signs, i.e., "medically acceptable clinical or laboratory findings", to support the claimant's symptoms-- e.g., for a back ailment, clinical findings on physical examination, or an abnormality on an x-ray or MRI. Of course, if there are no physical signs, a representative often will get a consultative psych. evaluation to try to establish a psychological basis for the pain.

So, if the ALJ truly has "no objective evidence of a medical [physical/mental] problem", the claimant cannot be found credible as to "disabling pain".

[Pixie]

One of the regulations requires that there must be a medically determinable impairment before any limitations of function may be considered. It is contemplated that there will be objective evidence to support the finding of a medically determinable impairment. However, the Appeals Council doesn't always adhere to this principle if the ruling is adverse to the Claimant.

Much more latitude in interpreting the rulings and the regulations is allowed when the decision is favorable to the Claimant. Most judges function as a Chancellor and reach an equitable result more often than you would think.

In the situation you suggested, the judge would probably be more interested in the medical evidence rather than in the testimony standing alone. The inquiry would be whether there is evidence in the record to support the testimony, even though the evedence may not rise to the "objective" level.

So, to give a direct answer to your question: It depends. Pix.

[deltajudge]

::)Well Pixie, surprised about your experience. As I have said several times on this board, I'm a longtime ALJ, now retired, you have made some good points. Let me say from the outset, I have always been leery of VEs, as I have always felt they fashioned their testimony to fit the ideology of the ALJ for whom they were testifying. Pay or no Pay. They knew, and wanted to keep their contracts. With that in mind, any ALJ could mold their hypotheticals to fit into that mindframe and get the VE to testify as they wanted. That is why I always thought VEs were worthless and a waste of money.

[judgegal]

Thank you, deltajudge. I've been an ALJ for SSA only since 2006, but I couldn't agree with you more about VEs. It's junk science. How do they know there are 4,682 jobs, and not 4,681, in the regional economy? They pull it out of a hat. You don't need a VE unless the claimant has one arm and you don't want to pay him. We almost never use VEs in my office.

[doctorwho]

So what do you do in a case of fibromyalgia?

[oldtimer]

Let me say from the outset, I have always been leery of VEs, as I have always felt they fashioned their testimony to fit the ideology of the ALJ for whom they were testifying. Pay or no Pay. They knew, and wanted to keep their contracts. With that in mind, any ALJ could mold their hypotheticals to fit into that mindframe and get the VE to testify as they wanted. That is why I always thought VEs were worthless and a waste of money.

Well, I don't know how you operated in Knoxville, but I'm at a loss to understand how any VE would know how to "fit" your "ideology." I like to think that no one in the hearing room, including the claimant and representative, has any idea when the hearing is over how I'm going to rule on that particular, let alone what my personal "ideology" is. Likewise, I try to rely on the evidence, rather than my "gut" as to whether or not the claimant is "deserving."

Thank you, deltajudge. I've been an ALJ for SSA only since 2006, but I couldn't agree with you more about VEs. It's junk science. How do they know there are 4,682 jobs, and not 4,681, in the regional economy? They pull it out of a hat. You don't need a VE unless the claimant has one arm and you don't want to pay him. We almost never use VEs in my office.

You're entitled to your "personal" opinion as to whether this is junk science, but you're not entitled to substitute that opinion when you're required by Social Security rulings (which, after all, are binding on you) to use a VE. Not to mention that many federal circuits have even more stringent requirements on VE usage. "How do they know there are 4,682 jobs, and not 4,681?" The VEs used in my office usually use either Department of Labor or state vocational information. Perhaps before rejecting VE testimony after sitting as an ALJ for only one year, you should expose yourself to more VEs.

[mrjones]

Deltajudge, you are right about being skeptical about VEs but, even though we can all agree that the VEs aim to please, the majority of disability cases involve nonexertional limitations or limits that will preclude reliance solely on the grid rules, and the majority of circuits will require VE opinion to make a legally defensible conclusion that there are jobs the claimant can perform in the economy.

As to the original question, Chris, you will get some good medical training and most offices also have good video resorces you can watch. More and more training is available online, too. A good primer for any new ALJ will be the medical listings in the regs - they set out what is required, medically, for a claimant to be presumptively disabled (without resort to subjective complaints) at step 3 of the five step disability evaluation process. But they also serve as an important code for disability - if, for ex., a claimant has 4 out of the 5 mandatory signs required by a medical listing, they will likely have a very limited RFC at step 4 and 5 of the evaluation where we decide just what a claimant can do despite their medical condition.

Every case has subjective elements and, as Pix alludes, SSA ALJs will usually grant claimants some benefit of the doubt and concede that there is some objective support for most medical impairments. If we didn't and we routinely denied cases at step 2 of the sequential disability process (as "non-severe") then there would surely be a chokingly large niumber of remands from the Appeals Council and District Courts. Most cases can not be decided at step 2 or 3 - and that is precisely why we hold hearings, to judge the subjective side of the disability. The fun of it all is that every case is unique and even the most common back ailments, for ex, impact the disability claimants differently, and that is why you will get to ask the many questions you will ask at a hearing, to assess the impact of the ailment on the claimant's functioning.

The hardest cases for ALJs have always been those impairments that are more highly subjective than objective in nature, such as depression/anxiety, fibromyalgia and chronic fatigue - impairments that are difficult to test. There are instructive Rulings on the later impairments and you will see that, even in these cases, there will be certain things to look for to judge the legitimacy of the complaint. You may develop your own viewpoint after you see a few cases and you will have to intuit things. But it is always best in these cases to simply look at the big picture: the claimant's activities, their type and pattern of treatment, the consistency of their complaints, how they present themselves at the hearing and during medical exams, and are the docs in agreement or disagreement about how severe the problems are. Try to avoid basing your judgment on just one thing, such as a one-time "consultative" psychologist opinion, but on the other hand it may be all ya got because many applicants can not afford medical treatment. If you are still perlexed, look at even small things like how they fill out their disability papers, too, then ask: is everything consistent?

Oh, yeah, there are world class liars and you will lose some cases, but this is rare. And, oppositely, it's easy to deny a blatant malingerer. Most cases fall in between, because everyone, even posters on this board, tend to slightly exaggerate their situation (just check my posts lamenting not getting past the initial OPM barrier). Just remember that everyone experiences pain and depression differently - if they didn't there would be no need for hearings and ALJs. Learn to question and listen well at the hearing. Look at them, too - demeanor evidence is very relevant even tho it can not serve as the main basis for judgment. Don't turn the hearing into an adversarial cross-exam process that it's not meant to be. Most claimant's by talking will bolster or damn their own case. Also review the cases well prior to the hearing and learn when you might want to get a Medical Expert opinion when the medical evidence is conflicting. Avoid snap judgments. Oh yeah, Have fun.

[Pixie]

mrjones has covered the bases. Thanks for fleshing it out. Pix.

[extang]

I am sure that it is appropriate to be "leery" of VE testimony under most circumstances. However, I would not single them out as being a major part of the evidentiary problems with our cases. We generally decide these cases based on very poor quality evidence, both medical (our claimants usually are not seeing the highest level medical practitioners so treating source evidence is usually not great; SSA has not increased the fees it pays for consultative examinations in more than 20 years, and the docs who are willing to do exams for SSA are not surprisingly not usually the cream of the crop, so if you request a CE you are likely to get garbage--also, perhaps needless to say, SSA does not train consultative examiners or the docs who testify at hearings, so even if they are excellent docs and are acting in good faith, they are likely to give you garbage; even our medical experts at hearings often have only the most primitive grasp of the listings) and non-medical (the vocational evidence, both from VEs and otherwise, is of extremely poor quality; SSA makes no effort to determine what claimants actually did in their jobs, how long they worked, whether part time or full time, etc.; your staff can hardly be bothered to get you summary or detailed earnings query, and it's a good idea to learn how to get them yourselves-- it's very easy). You work with what you have and make the best decision you can, never forgetting you're supposed to be cranking the decisions out at the rate of more than two a day [i.e., spending on average 2-3 hours on a case, including reviewing the case, holding the hearing, writing instructions or drafting a decision, reviewing a draft decision]. A lot of the time it's just a shot in the dark.

[jagghagg]

Oh, man - I LOVE it when ya'll talk the lingo! Howsoever, while I can interpret most every acronym from the Air Force or Navy for you, I must ask: "VE" ?

[extang]

VE=vocational expert.

[southerner]

In our office, VE's are used in almost all adult disability cases that go to hearing. When we receive some out-of-town decisions for drafting, I am often surprised by the lack of VE's that are used. With pain factors and other non-exertional factors come into play, as mrjones pointed out, circuits require use of VE's. I don't understand the reluctance in utilizing them.

The ALJ's need to frame their hypos with alternative premises in order to make the best use of the VE's. For some reason, a few ALJ's include diagnoses in the hypo, but this should not be as that is irrelevant IMO. The hypo should reflect physical and/or mental, or otherwise demonstrable or credible limits, i.e., sit/stand/walk restrictions, limits on concentration, restrictions on upper or lower extremities, etc. The GRIDs are almost never fully applicable and use of them to deny should be rare.

[aljsouth]

I use VE's in every adult disability case. I have not found them to have the problems one poster identified above. Naturally if you give a hypothetical that usually supports ability to perform work then the VE will give you jobs. This does not mean the VE is trying to please the judge. The biggest problem with ve's is the agency does not require someone to really be a vocational expert. I have seen the agency "hire"a VE who was a night manager at a state institution, because he took vocational courses at college. Did not have a clue as to real vocational issues or actual jobs. We complained but Region told us we had to "rehab" him. So much for an independent witness.

For any of you ending up in the fifth circuit you had better use VE's. I know this is not the custom for some parts of the country. We have had ALJ's in TN come hear our cases and they did not use VE's, which is common there. We get the AC remands because of no VE testimony.

[3orangewhips]

Please get a VE and actually ask them questions at the hearing. I can not count the number of cases where a VE is present at the hearing and the ALJ doesn't ask them anything. Even if a case clearly meets the grids, no VE puts me behind the 8 ball trying to defend these decisions in court.

[happy]

It's also important for both ALJs and decision drafters to remember that we have several rulings that address the vocational impact of certain nonexertional limitations. It is not ALWAYS necessary to have a VE, but if you do not, you'd better be prepared to expressly articulate how you came to the conclusion that a nonexertional limitation did or did not erode the available occupational base. Of course, this is of less "reviewable" importance for a favorable determination. I.e., if you find that a claimant's inability to perform more than occasional fine manipulation significantly impacts the sedentary occupational base but you forget to cite SSR 96-9p, it's not that big of a deal. However, you might find yourself seeing that case again on remand if you deny a claim but don't address the fact that the inability to stoop, crouch, kneel and crawl more than occasionally does not signficantly impact the sedentary occupational base (SSRs 83-10, 83-14) or that the claimant retains the ability to perform the basic mental demands of unskilled work (SSR 85-15). Then again, you might not see it back at all. However, the claimant may just understand a little better why he didn't get paid. Maybe.

[testtaker]

aljsouth said:

I use VE's in every adult disability case.

I practice in the second circuit (in the areas of the Northern District & Southern Districts of NY). Most of the judges I've encountered rarely use VEs, except on order of the AC or if there are certain non-exertional impairments.

[chris]

The "grids"?

[mrjones]

testtaker, your judicial circuit appears to be an exception (laggard) but even as you indicate, the Appeals Council may likely review your cases and suggest use of a VE. The regs are still curiously silent on VEs and the Rulings just suggest their use but, on the other hand, using the grids to deny a claim, or relying on a Ruling, or having the ALJ "play" VE and interpret the D.O.T. will, in the majority of circuits today, be highly frowned upon - all these approaches are a cheap sounding second fiddle to actual VA testimony. A few years ago ALJs from my office handled a sizeable load of NY cases and I think they exported VEs. Anyway, the day will come where your courts will require them.

[nyctourist]

I will just remind all of us that our mission in the agency is to get the cases processed while correctly applying the law and regulations to the facts before us. Wow. What a novel idea! Anyway - as for VE testimony - whether you believe it or not and whether you think you can decide cases without it, the regulations and case law require vocational evidence when most nonexertional limitations affect the claimant's ability to perform work. If one does not solicit that testimony or obtain other evidence, then one's case comes back on an UNNECESSARY remand. That remand then has to be reopened, re-pulled, re-scheduled, reheard, rewritten, and remailed. Please consider that this time and expense could have been saved by calling one witness at the initial hearing. This remand really is a 2 for 1 as a claimant that has not been afforded an initial hearing is displaced by the UNNECESSARY remand. We want to address the backlog - lets address relitigating cases unnecessarily!

Thank you for the soapbox!!!!! I'm just saying . . .