Onset Dates - Not ALJ hiring

[Propmaster]

Here's an example of the kind of thing that drives me up and down the walls with the current ALJ corps (at least some of them, no offense intended to those to whom this does not apply). Why not rely on the actual legal bases for what you are doing when moving onset dates? Or don't do it.

I got a decision on a client whose case has been back and forth on appeal since a 2002 application. She has 3 valid IQs of 65ish and some other mental problems. She should meet listing 12.05C; the most recent ALJ found that she mets 12.05D. Fine, I can live with that.

The ALJ found an onset date of 2004, rather than 2002. His rationale was that she did not go into treatment until 2004. Thus, her complaints were not credible until then.

I'm confused - is the ALJ saying that she was made disabled by entering treatment? I know many other ALJ's that seem to think MRIs and X-rays CAUSE arthritis, since they like to have an onset date of the date of the x-ray. You'd at least think they would honor my argument that the date the pain caused the person to schedule the x-ray in the first place would be a more logical onset date, but no.

I think that this is a bit of social engineering - that the ALJ is saying "I will not pay benefits to someone who is not in treatment." However, we have 3.5 years now of treatment that has not restored this woman's ability to work. There is no basis for failing to honor her allegations of disability going back to her 2002 psychiatric hospitalization in the structure of the statute. This is merely punishment for not getting treatment.

In this case, Title II entitlement was not affected; and we are certainly not going to appeal (we don't want to risk this result). But why can't the ALJ just write what he's obviously thinking? Presumably because he can't justify it in the law. In which case, why does he rule that way?

Any input from sitting ALJ's? Is this some kind of process I will (hopefully) be indoctrinated with during training?

[odarite]

I am not commenting on your particular case since I don't know all the facts, and in fact when it comes to 12.05 listings my postulate is less true than with other listings. Here is the rationale: the Social Security Act requires "a medically determinable mental or physical impairment.....". The ALJ may be saying that before she entered treatment there is no documentation to support that the claimant had a medically determinable impairment.

[testtaker]

Propmaster - Use of Social Security Ruling 83-20, which addresses onset dates is very helpful. I have used it successfully when the medical evidence was sparse before a certain point, but it was clear that the person's mental impairment began earlier. Use of credible witnesses who were familiar with the claimant at the time prior to treatment is helpful, as long as the evidence once treatment started is consistent with the testimony.

Hey - I just saw that I graduated to 5 stars! I guess 100 posts is the threshold.

[Propmaster]

Feb 14, 2008 14:00:39 GMT -5 testtaker said:

Propmaster - Use of Social Security Ruling 83-20, which addresses onset dates is very helpful. I have used it successfully when the medical evidence was sparse before a certain point, but it was clear that the person's mental impairment began earlier. Use of credible witnesses who were familiar with the claimant at the time prior to treatment is helpful, as long as the evidence once treatment started is consistent with the testimony.

Hey - I just saw that I graduated to 5 stars! I guess 100 posts is the threshold.

I agree with this. I'm wondering why it is so rare for ALJ's (at least in the three or so I am familiar with) to use this rational method for determining an onset date.

And for Odarite: I agree that the law requires a medically determinable impairment (MDI). But once you show the MDI exists, and if it is not the kind of MDI that has a traumatic origin - for instance arthritis that just deteriorates over time - why the aversion to seeking a reasonable onset date. The proof of MDI and proof of disability are not the same.

Or are they? Am I missing something? I have had clients where we have literally dismissed the requests for hearing because we could not identify the MDI in the case. Later, when a diagnosis was made, we requested reopening and/or alleged an invasive onset date.

This should be valid - once an MDI is identified, if the same symptomatology is present at all times, is there really a basis for setting an onset date on the date of a diagnostic test?

(I realize I am skipping the credibility analysis - I am dealing here with clients found mostly credible, not cases where the symptoms present at any given time are at issue).

[nonamouse]

How is this person having a later onset to meet 12.05 (C or D) since it requires evidence of onset of mental retardation demonstrated during the developmental period such as prior to age 22? Maybe I'm tired and not catching on?

Treatment should not make a bit of difference in most 12.05 cases for meeting the listing. I could see if it was an ME testifying that the person equals the listing by including the IQ plus another mental impairment.

[extang]

A few comments from somebody who spends a fair amount of time thinking about EODs:
strictly speaking, you don't need a diagnosis to establish that there is an MDI; all you need are signs [not just subjective complaints or symptoms], something "objective" in the peculiar medical sense of that term. Of course, if there is no diagnosis, it may be hard to determine, e.g., whether the impairment meets the duration requirement or can reasonably be considered to be severe.
Before there is evidence from a treating source, even if there is an MDI that is a chronic condition and was obviously present before the treatment began, it can be very hard to justify a finding about severity. I can see going a few months before treatment began, but generally would have trouble justifying much more than that. Many impairments really can be very variable in severity. Depressive disorders, e.g., often spontaneously remit and often respond quickly to medication. Evidence that there is a severe depressive disorder at time x tells you very little about whether it was severe at time x - 6 months.
It is often necessary in order to make inferences based on very limited evidence to find that the criteria of the initial paragraph of section 12.05 are met. It is probably not to the claimants' advantage to start getting too technical about these issues in the hope of getting an earlier onset date. Getting technical about these requirements is the kind of thing that DQB does and that sure as heck does not work to the advantage of the claimants.

[hooligan]

Feb 14, 2008 16:40:52 GMT -5 nonamouse said:

How is this person having a later onset to meet 12.05 (C or D) since it requires evidence of onset of mental retardation demonstrated during the developmental period such as prior to age 22? Maybe I'm tired and not catching on?

Treatment should not make a bit of difference in most 12.05 cases for meeting the listing. I could see if it was an ME testifying that the person equals the listing by including the IQ plus another mental impairment.

12.05(C) was one of the most difficult concepts to come to grips with for a new judge - at least it was for me.

The manifestation prior to age 22 was generally not a problem because most individuals will have a history of special education. If you don't have that, you may need a medical expert to suggest that the condition "equals" the listing.

The concept of later onset is not unusual because the listing requires a secondary impairment (not necessarily mental) that causes some additional occupational limitation.

The kicker tends to be that the individual must also demonstrate "deficits in adaptive functioning." This can be a problem if the individual has a significant work history, even though it may be menial activity. When the performance portion of the WAIS III is above 70, it is hard to argue that the individual is functioning at a mildly mentally retarded level.

You also need to be careful not to rely solely on the raw scores. The examiner also has to attest that the results are deemed valid. Poor effort or showing up drunk for the exam makes the whole process worthless. Back to back exams are also questionable and if taken too close together can bias the results.

I have found that the Appeals Counsel likes to second guess 12.05C determinations. It triggers remands. As a result, it is generally safer and more supportable to go to Step 5 and evaluate other factors. An example of a residual functional capacity evaluation might be: Limited to simple, unskilled tasks learned in up to one month, GED levels as defined in the Dictionary of Occupational Titles as Reasoning 1, Math 1, Language 1 (3 being average) and requiring close supervision. If there are secondary limitations on exertion, manipulation or use of the upper extremities, that pretty much ends the discussion.

[aljsouth]

Feb 14, 2008 16:40:52 GMT -5 nonamouse said:

How is this person having a later onset to meet 12.05 (C or D) since it requires evidence of onset of mental retardation demonstrated during the developmental period such as prior to age 22? Maybe I'm tired and not catching on?

Treatment should not make a bit of difference in most 12.05 cases for meeting the listing. I could see if it was an ME testifying that the person equals the listing by including the IQ plus another mental impairment.

It is the "other " severe requirment of 12.05(c) that is causing the discussion of later onset. Assume a person with valid IQ's througout school of the high 60's, with no other impariments and no issues concerning adaptive behavior that would make one question the diagnosis of mild mental retardation. That person does not meet 12.05(c). At age 30 when he is in a MVA and has a foot amputated secondary to injuries, then that person meets 12.05(c) as of the MVA.

[Propmaster]

As Aljsouth said, the issue was the additional impairment requirement, not the IQ score range (nor adaptive functioning). Earlier, someone referred to a requirement that an individual meet the listing prior to age 22 - that is not part of the listing (I assume it was a misstatement). There only must be evidence of deficits of functioning prior to age 22 - the exact severity of the deficits is not specified. In other listings (such as the old obesity listing), the requirement for the presence of a condition/symptom without a specified severity was generally interpretted by courts to be a requirement for its presence, not for a disabling presence.

If the additional impairment was amenable to treatment but the individual was not getting treatment, my understanding is that the following chain of findings would be appropriate:
1) Individual is disabled
2) Individual failed to follow recommended treatment
3) There was no good cause for failure to follow treatment
4) The treatment would be expected to control impairment (increase RFC to non-disabled level)
5) Thus, although disabled, the exception to entitlement for failure to follow treatment applies.

I have never seen this done "properly." I have practiced in 5 ODARs (sorry for earlier leaving the word ODAR out of my post - it looked like I had only been in front of three ALJs!), 3 most commonly. Always I get decisions where the ALJ simply changes the RFC to be what the claimant's optimum functioning could be with treatment compliance.

My expectation is that this is done because making the findings 3 and 4 as I listed require more development of evidence than is generally done prior to the case being decided on. Rather than have claimants/reps argue about these findings (which in many cases I could/would), the ALJ simply calls it a credibility factor, discounts the evidence of actual limitations, and finds a less restrictive RFC.

The problem is that this finding does not make me happier. I would rather the ALJ follow his/her chain of thought in the decision of how the decision was made. Let's argue about the real issue in the case - would treatment make things better? Maybe as an ALJ (hopefully) I will see the utility/efficiency of faking my grounds for the decision. I have an open mind.

But going back to my original point, once we have evidence that years of compliance with treatment did not alleviate the symptoms (and the ALJ apparently agrees with that, finding disability throughout those years and ongoing), why would the onset date not be dated to a hospitalization with concommitant lay testimony about the symptoms during those two years?

The best answer was by ALJsouth (I believe) about inability to prove continuous severity during periods lacking medical evidence. That's valid in many cases, and it was a great point that I will keep in mind and that I found very persuasive. However, I can't believe it is always impossible to determine, and yet these certain ALJs always set onset dates at diagnoses.

(I'm sure I will amuse myself if I become an ALJ with the way my views change. I should make a copy of this and send it to someone to send to me in 5 years if I get the job to see how I would answer my own question).