Monthly Archives

October 2015

Glossary

By The disability evaluation process

Glossary

These explanations are drawn from the SSA regulations, the Social Security Handbook, the SSA’s Program Operations Manual System (POMS), the Medical Expert Handbook, the Vocational Expert Handbook, and SSA’s website.

Acquiescence Rulings (AR).

A type of Social Security ruling in which SSA agrees to follow a circuit court of appeals decision that is contrary to SSA policy. The ruling will be followed only in the circuit from which the decision was issued.

Activities of Daily Living (ADL).

Include adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for grooming and hygiene, using telephones and directories, and using a post office. ADLs are evaluated not only for the mental Listings but also when assessing credibility and pain.

Administrative Appeals Judge (AAJ).

Appeals Council judge.

Administrative Law Judge (ALJ).

A neutral fact finder employed by the Office of Disability Adjudication & Review (ODAR) to determine if a claimant is entitled to benefits under the law. Most decisions are related to disability programs but ALJs decide other issues such as retirement, as well.

Age.

Age refers to an individual’s chronological age and the extent to which age affects ability to adapt to a new work situation and to work in competition with others. The age categories are:

1. Younger Person

—if an individual is under age 50, the regulations provide that generally SSA does not consider that the individual’s age will seriously affect the ability to adapt to new work situations. It is only when an individual is illiterate and age 45 through 49 that age affects the ability to adapt to new work situations for those under age 50.

2. Person Approaching Advanced Age

—if an individual is closely approaching advanced age (50-54), SSA will consider age along with a severe impairment and limited work experience as possibly seriously affecting an individual’s ability to adapt to a significant number of jobs in the national economy.

3. Person of Advanced Age

—SSA considers advanced age (55-59) to be the point at which age significantly affects a person’s ability to engage in substantial gainful activity. If an individual is severely impaired, of advanced age, and cannot do at least medium work, he/she may be found disabled unless the individual has skills that can be used in (transferred to) less demanding jobs that exist in significant numbers in the national economy.

4. Person Close to Retirement Age

—if an individual is close to retirement age (60-64) and has a severe impairment, he or she will be considered not able to adjust to sedentary or light work unless the individual has skills that are highly marketable.

Alcoholism or Other Drug Abuse (AODA).

Also referred to as drug addiction or alcoholism (DAA).

Alleged Onset Date (AOD).

The date on which a claimant indicated he or she became disabled due to a physical or mental impairment.

Americans with Disabilities Act (ADA).

Federal law that provides remedies for discrimination against disabled people.

Appeals Council (AC).

The highest level of administrative appeal. The Appeals Council reviews decisions made by ALJs. Appeals Counsel members decide if a request for review of an ALJ decision will be granted, denied, or dismissed. It is located in Falls Church, Virginia.

Auxiliary (AUX).

Other family members, usually children or spouse, to whom additional monthly benefits may be payable on the earnings record of a person entitled to Social Security benefits.

Average Current Earnings (ACE).

Multiple formulas are used to calculate average current earnings, then the highest number is used. A reduction in the disabled worker’s, and dependents’ benefits may be made for any month the worker’s total Social Security benefits, workers compensation, and where applicable, other public disability benefits exceed 80% of his or her “average current earnings.” The SSA earnings record shows the ACE amount with the 80% adjustment already computed.

Average Indexed Monthly Earnings (AIME).

The dollar amount used to calculate Social Security benefits for people who attained age 62 or became disabled (or died) after 1978. To arrive at AIME, SSA adjusts actual past earnings using an “average wage index,” so claimants won’t lose the value of past earnings (when money was worth more) in relation to more recent earnings. If a claimant attained age 62 or became disabled (or died) before 1978, SSA uses Average Monthly Earnings (AME).

Broad World of Work.

Work that exists at all exertional levels. It may include skilled and semiskilled work as well as unskilled work.

Central Office (CO).

Administrative headquarters for the Social Security Administration, located in Woodlawn, Maryland, a suburb of Baltimore.

Chief Administrative Law Judge (CALJ).

Located in Falls Church, Virginia, the CALJ has supervisory authority over Regional Chief Administrative Law Judges, Hearing Office Chief ALJs, and ALJs.

Childhood Disability Benefits (CDB).

This program provides benefits for disabled adult children (DAC) who may obtain benefits on the work record of a retired, disabled, or deceased parent. These claimants must be over age 18 and unmarried, and must become disabled before age 22. Disability is determined using the rules for the regular Social Security disability program.

Claims Representatives (CR).

Federal employees of the Social Security Administration who assist individuals in applying for Social Security and SSI benefits. They determine if the claimant meets entitlement requirements of the law and regulations. They make many of the required inputs to a nationwide database that processes claims. They are supposed to represent both the claimant’s and the Government’s interests.

Code of Federal Regulations (CFR).

The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the federal government. The Code is divided into 50 titles that represent broad areas subject to federal regulation. Each title is divided into chapters that usually bear the name of the issuing agency. Each chapter is further subdivided in parts covering specific regulatory areas.

Consultative Examination (CE).

Medical examination at government expense. Exams may be from the individual’s treating physician or independent consultative physician retained by SSA. Purpose is to obtain more detailed medical findings about the impairment; or obtain technical or specialized medical information; or to resolve conflicts or differences in findings already in the file.

Continuing Disability Review (CDR).

Periodic reviews conducted to determine if disability continues. They may be scheduled where medical improvement was expected or unscheduled if the beneficiary or state vocational rehabilitation agency reports improvement. Formerly called Continuing Disability Investigation (CDI).

Controlling Date (CD).

The latest date a widow(er) can be found disabled. It functions like the Date Last Insured in a regular Social Security disability case.

Cost of Living Adjustment (COLA).

Automatic periodic (usually yearly) increases in SSA and SSI benefits based on a formula tied to cost of living increases. The increase is based on the smaller of either the Consumer Price Index as published by the Department of Labor or the yearly average Wage Index, which is based on nationwide wages.

Date of Death (DOD).

The date shown on evidence of death record, death certificate, or statement from funeral director that an individual died. The established date of death is used to determine when benefits may be paid to survivors or when benefits should cease.

Date of Entitlement (DOE) to Disability (DOED).

Date of entitlement establishes the date from which past due benefits will be paid.

1. Title II—Five full months after date of onset.

2. Title XVI—Date of application or date disability is established for claims filed before August 22, 1996. For claims filed on or after that date, the SSI date of entitlement is the first of the month after all requirements are met.

Date of Filing (DOF).

The date that is used to determine when an application for benefits is received. This may be the actual date received or a date in the past in certain “protective filing date” cases.

Date First Insured (DFI).

The earliest date the claimant first meets the coverage requirements for Social Security disability.

Date Last Insured (DLI).

The date on which a claimant’s coverage for disability protection expires. It applies in Title II claims only.

Date Last Met (DLM).

Same as Date Last Insured (DLI).

Date of Onset (DOO).

The date the claimant became disabled.

Deceased Wage Earner (DWE).

A person who has worked under the social security system and has died. It is possible for surviving family member or estate to receive back benefits that were due an individual before he died. Also monthly survivor benefits may be due.

Detailed Earnings Query (DEQY).

An SSA printout that shows earnings from each employer.

Diary Date.

A scheduled reexamination date in an allowed case for evaluation of possible medical improvement.

Dictionary of Occupational Titles (DOT).

Last updated in 1991, the DOT provides a brief description of more than 12,000 occupations that exist in the economy. Prepared by the Department of Labor (DOL).

Disabled Adult Child Benefits (DAC).

See Childhood Disability Benefits (CDB).

Disability.

The inability to perform any substantial gainful activity by reason of any medically determinable physical and/or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

Disability Determination Service (DDS).

State agency that makes disability determinations at initial and reconsideration levels. Usually called the “state agency.”

Disability Determination Service Query (DDSQ).

A query of an SSA database that shows information about actions taken on a claim by the state agency at the initial and reconsideration levels.

Disability Insurance (DI).

Social Security Disability Insurance program.

Disability Insurance Benefits (DIB).

Monthly Social Security disability payments.

Disabled Individual, Worker or Child (DIWC).

Disability claim under Title II of the Social Security Act.

Disabled Widow/Widower Benefits (DWB or DIWW).

The disability benefits available to disabled widows and widowers of insured workers, with benefits first payable to the widow(er) at age 50.

DISCO DIB Earnings Record.

An SSA earnings printout, the name of which stands for DIBInsured Status Computation Online. It shows yearly earnings, date first insured and date last insured but it does not show the PIA.

Drug Addiction or Alcoholism (DAA).

Also referred to as alcoholism or other drug abuse (AODA).

Earnings Record (ER).

A history of earnings reported to SSA. The earnings are used to determine insured status for entitlement to retirement, survivors, disability and health insurance benefits and to calculate cash benefit rates.

Earnings Requirement.

Applies only in Title II DIB cases. A DIB claimant must have worked and earned at least 20 quarters of coverage in the last 40 quarters before “onset” (equivalent to 5 of the last 10 years) and be “fully insured” to be entitled to disability benefits. SSA gives special consideration to blind claimants and claimants under the age of 31. In these situations, claimants with fewer than 20 quarters of covered work may be entitled to disability benefits. (See Insured Status.)

Education.

Education is primarily used to mean formal schooling or other training which contributes to ability to meet vocational requirements, for example, reasoning ability, communication skills, and arithmetical ability. However, if an individual does not have formal schooling, this does not necessarily mean that he or she is uneducated or lacks these abilities. The term “education” also includes how well the individual is able to communicate in English. Unless there is evidence to contradict a person’s statement as to the numerical grade level completed in school, the statement will be used to determine the person’s educational abilities. The person’s present level of reasoning, communication, and arithmetical ability may be higher or lower than the level of formal education. Evidence of this includes the kinds of responsibilities the person had when working, any acquired skills, daily activities, and hobbies, as well as the results of testing. Therefore, a person will meet the criteria for the different education levels specified in the regulations, not solely on the basis of his or her statements, but based upon all evidence pertinent to evaluating that person’s educational capacities.

Categories of Education:

1. Illiteracy

—Illiteracy means the inability to read or write. SSA considers someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists, even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.

2. Marginal Education

—Marginal education means ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs. SSA generally considers that formal schooling at a 6th grade level or less is a marginal education.

3. Limited Education

—Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. SSA generally considers that a 7th grade through the 11th grade level of formal education is a limited education.

4. High School Education and Above

—High school education and above means abilities in reasoning, arithmetic, and language skills acquired in formal schooling at a 12th grade level or above. SSA generally considers that someone with these educational abilities can do semi-skilled through skilled work. High school education includes a General Equivalency Diploma (GED).

The criterion of “high school or graduate or more—provides for direct entry into skilled work” is met when there is little time lapse between the completion of formal education and the date of adjudication, and where the content of the education would enable individuals, with a minimal degree of job orientation, to begin performing the skilled job duties of certain identifiable occupations with their RFC.

5. Inability to Communicate in English

—Since the ability to speak, read and understand English is generally learned or increased at school, SSA may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn’t speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, SSA considers a person’s ability to communicate in English when it evaluates what work, if any, he or she can do. It generally doesn’t matter in what other language a person may be fluent.

Electronic Disability Folder (eDIB).

SSA’s online collection of documents related to a claimant’s case. It is designed to replace the paper files used by SSA in the past.

Electronic Disability Guide (eDG).

Part of the POMS that explains policy, process and procedural changes for electronic processing of disability claims.

Electronic Records Express (ERE).

Website where claimants’ representatives can upload documents to a claimant’s Social Security hearing exhibit file: http://eme.ssa.gov. Registration is required before using the website for the first time. Information needed to file documents is found on the barcode provided by SSA.

Electronic Worksheet (EWS).

Notes written by state agency doctors and disability examiners that summarize a claimant’s medical records and explain state agency doctors’ conclusions in a case.

Employee (EE).

Under the Social Security Act there are three classes of workers who are considered employees:

1. Officers of corporations.

2. Those who are employees under the common-law test.

3. Those in four specific occupations who if they are not employees under 1 or 2 above may still be employees if certain conditions are met. Agent drivers, full-time life insurance salespersons, full-time traveling or city salespersons and home workers may be considered employees.

Employer / Employee (ER / EE).

The employer/employee relationship is a term used to describe who is the employer and has the final authority to control the worker in performing his or her services, or which reserves the right to do so—the person or entity which has the sole power to hire, fire, and supervise the worker. There are a number of rules or guidelines used to determine who the employer is or if the worker is in fact not an employee but self-employed.

Entitlement (ENT).

A person who meets all of the eligibility requirements for a specific type of benefit and has filed an application for those benefits.

Environmental Conditions.

Temperature, humidity, noise, vibration, fumes, odors, toxic conditions, dust, poor ventilation, hazards, etc.

Environmental Restriction.

An impairment-caused need to avoid one or more environmental conditions in a workplace.

Equal Access to Justice Act (EAJA).

A federal law that provides for awards of attorney fees against the federal government under certain circumstances.

Established Onset Date (EOD).

The date on which medical and work information substantiates that the claimant became disabled (Title II).

Exertional Activity.

One of the primary strength activities (walk, stand, sit, lift, carry, push, pull) which defines a level of work.

Exertional Capability.

A capability required to perform an exertional activity.

Exertional Impairment.

Exertional impairment affects an individual’s physical abilities (strength) and impairs his/her ability to walk, stand, sit, lift, carry, push, pull.

Exertional Level.

A work classification defining the functional requirements of work in terms of the range of the primary strength activities required. A federal regulation sets forth the primary strength activities specifically associated with sedentary, light, medium, heavy, and very heavy levels of exertion.

Exertional Limitation

. An impairment-caused restriction that affects capability to perform an exertional activity (sitting, standing, walking, pushing, pulling, lifting, and/or carrying). (See Physical Demands.)

Expedited Reinstatement (EXR).

If a beneficiary, whose benefits were terminated because of the performance of SGA, stops working after the end of the 36-month reentitlement period, that beneficiary can request “expedited reinstatement,” referred to as EXR in the POMS, for 60 months after entitlement is terminated because the claimant returned to work at the SGA level.

Extended Period of Eligibility (EPE).

A 36-month period where T-2 disability benefits can begin again without filing a new application for benefits where disability ceased due to work activity (substantial gainful activity—SGA) and the earnings subsequently fall below the SGA amount.

Family Maximum (FMAX).

The maximum amount of Social Security benefits payable on a Social Security record. The family maximum is determined according to the method of computing the PIA and the kind of benefits payable to the worker.

Federal Benefit Rate (FBR).

The federal monthly SSI payment due an individual. The amounts are set by statute and are subject to annual increases as determined by the cost-of-living adjustments. If the individual’s monthly countable income exceeds the FBR, the SSI payment may be decreased or eliminated. In many states, the state adds a supplement to the FBR.

Federal Record Center (FRC).

A storage facility for the physical storage of past records or claims that may be needed for future use.

FICA Tax.

FICA stands for “Federal Insurance Contributions Act.” It’s the tax withheld from salary or self-employment income that funds the Social Security and Medicare programs.

Field Office (FO).

The Social Security Administration has about 1300 local offices, most of which are field offices, located throughout the country. A field office may have a branch office, that is, a secondary site that is administratively managed by the field office. At local offices, individuals can apply for a Social Security number, check on an earnings record, apply for benefits, and get information about individual and family rights and obligations under the law. The agency also has toll-free telephone service nationwide. The number is 1-800-772-1213.

Freedom of Information Act (FOIA).

A law, along with the Privacy Act, that controls the type and scope of information that may be released and to whom it may be released. The law applies to all government agencies including SSA. The FOIA makes available to the public statement of organization, administrative procedure, policies, interpretation of law and precedent decisions that affect the public, unless they fall within one of the statute’s specific exemptions.

Freeze—Title II (FZ).

Years wholly or partly in a period of disability that are not used in computing a Social Security benefit. The years when a person is disabled are “frozen” and not counted against them when computing their benefits.

Frequent.

Occurring from one-third to two-thirds of the time during the workday.

Full Range of Work.

All or substantially all occupations existing at an exertional level.

Fully Insured.

One of two requirements for insured status to qualify to receive Social Security disability benefits. A claimant must have one QC for every year of age after age 21 up to the calendar year before becoming disabled, but never more than 40 QCs are required.

Government Pension Offset (GPO).

A Social Security benefit payable to a spouse may be reduced if the spouse receives a periodic payment based on his or her own employment that was not covered under Social Security from the federal government, a state, or political subdivision of a state. Generally, Social Security benefits due the spouse will be reduced by two-thirds of the amount of their government pension. There are some exceptions to when the offset may apply.

Great Lakes Program Service Center (GLPSC).

An SSA regional payment center located in Chicago.

Grid.

A common term used for the tables in the Medical-Vocational Guidelines.

HALLEX.

The SSA manual used by the Office of Disability Adjudication and Review. A copy may be found on SSA’s website, www.socialsecurity.gov.

Health Care Financing Administration (HCFA).

The federal agency responsible for administering Medicare. Medicare consists of hospital insurance (Part A), medical insurance (Part B), and drug coverage (Part D). HCFA sets the standards which hospitals, skilled nursing facilities, home health agencies, hospices, and other providers and suppliers of services must meet in order to receive payment for Medicare-covered services and items. HCFA contracts with organizations called carriers to administer the Medicare program.

Health and Human Services (HHS).

An agency of the federal government. The Social Security Administration was a part of HHS until 1995 when the Social Security Administration became an independent agency.

Health Insurance Part B (HIB).

The health insurance part of Medicare, which provides comprehensive health insurance protection to the aged and disabled.

Health Insurance Part D.

The part of Medicare that provides drug benefit coverage.

Hearing Office Chief Administrative Law Judge (HOCALJ).

Hospital Insurance Part A (HIA).

Hospital Insurance (Part A) of Medicare helps pay for inpatient hospital care, inpatient care in a skilled nursing facility, home health care, and hospice care.

Hypothetical Questions.

Hypothetical questions, often referred to as “hypotheticals,” are posed by the administrative law judges to vocational experts at Social Security hearings. The questions are phrased in terms of a hypothetical situation to elicit specific vocational information concerning possible occupations the claimant could hold.

Impairment Related Work Expenses (IRWE).

The cost of certain impairment-related services and items that a disabled (but not blind) person needs in order to work can be deducted from earnings for the purposes of determining SSI payment amount and whether work is SGA, even if these items and services are also needed for non-work activities.

Individualized Plan for Employment (IPE).

Plan developed by the individual and the state vocational rehabilitation agency for assisting disabled individuals to return to work.

Individualized Written Rehabilitation Program (IWRP).

Former name of Individualized Plan for Employment.

In-Kind Support and Maintenance (ISM).

In the SSI program, unearned income in the form of food or shelter that an individual receives from someone else.

Insured Status (I/S).

When a claimant has the requisite number of quarters of coverage for entitlement to a Social Security (Title II) benefit. The number of quarters required for insured status is dependent upon the type of benefits sought and the age of the claimant. (See Earnings Requirement.).

Interim Assistance Agreement (IAA).

Agreement by which a claimant for SSI agrees to repay the state for assistance provided while the SSI claim is pending.

Job.

A position of employment. Within a given occupational classification or job-title there may be one or thousands of jobs in a prescribed geographical area. (See “occupation.”).

Limited To.

Does not exceed.

Living In the Same Household (LISH).

SSA pays a lump sum death benefit to the surviving widow(er) if the widow(er) was living in the same household as the worker when the worker died.

Master Beneficiary Record (MBR).

SSA’s computerized record containing a history of benefits paid on an individual’s record including all auxiliaries as well as current benefits being paid.

Maximum Sustained Work Capability.

The highest functional level a claimant can perform on a regular work basis—sedentary, light, medium, heavy, or very heavy.

Medicaid (MA).

Also known as Medical Assistance and Title 19 (because the law governing Medicaid is located in Title XIX of the Social Security Act), it is the joint federal and state health insurance program for disabled, elderly and those with children who meet income and asset limitations. Medicaid programs vary from state to state.

Medical Evidence of Record (MER).

A claimant’s medical records that have been provided to SSA.

Medical Expert (ME).

A medical doctor or psychologist who at an ALJ’s request provides a medical opinion about a claimant’s case either in testimony or by answering interrogatories.

Medical Improvement Expected (MIE).

When a person’s disability is expected to improve, SSA will document the file to show MIE and diary the case for future reexamination.

Medical Improvement Not Expected (MINE).

If a person’s disability is not expected to improve, the case will be coded MINE.

Medical Improvement Possible (MIP).

The vast majority of disability cases, which are supposed to be reviewed every three years.

Medical Re-Exam Date (MRED).

If medical improvement is expected, the case will be diaried for a reexamination in the future for a CDR.

Medical-Vocational Guidelines.

Also known as the “grids,” the Medical-Vocational Guidelines are tables that feature vocational rules that consider a claimant’s age, education, prior work experience, and remaining RFC to direct or guide the decision maker to a conclusion of “disabled” or “not disabled.”

Medicare.

The federal health insurance program for people 65 years of age or older, certain younger people with disabilities, and people with permanent kidney failure with dialysis or a transplant, sometimes called ESRD (End-Stage Renal Disease).

Mental Residual Functional Capacity (MRFC).

What a claimant can do in a work setting on a regular and continuing basis in spite of the claimant’s mental limitations and restrictions. Mental RFC focuses on a claimant’s ability to understand, carry out, and remember instructions, and to respond appropriately to supervision, coworkers, and work pressures in a work setting. Mental RFC assessment is done by SSA decision makers.

Medical Source Statement (MSS).

A statement from a claimant’s treating source about what the claimant can still do despite the claimant’s impairments. The statement should be based on the medical source’s findings concerning the claimant’s medical history, clinical findings, laboratory findings, diagnosis and treatment.

Mid-America Program Service Center (MAMPSC).

An SSA regional payment center located in Kansas City, MO.

Mid-Atlantic Program Service Center (MATPSC).

An SSA regional payment center located in Philadelphia.

Modernized Claims System (MCS)

. SSA database that contains information about Title II applications.

Modernized Supplemental Security Income Claims System (MSSICS).

SSA database that contains information about SSI applications similar to the MCS for Title II claims;

Monthly Benefit Amount (MBA).

The regular monthly benefit check an individual receives from SSA.

Net Earnings From Self-Employment (NESE).

The total gross income, as computed under the income tax law, derived by an individual from all trades and businesses, less the deductions (including the allowances for depreciation) attributable to such trade or business that the person is allowed to take in computing income tax.

Nonexertional Impairment.

An impairment that does not directly affect the ability to sit, stand, walk, lift, carry, push, or pull; rather, this type of impairment affects the mind, vision, hearing, speech, and use of the body to climb, balance, stoop, kneel, crouch, crawl, reach, or handle, and use of the fingers for fine activities.

Nonexertional Limitation.

An impairment-caused limitation of function which directly affects capability to perform work activities other than the primary strength activities.

Northeastern Program Service Center (NEPSC).

An SSA regional payment center located in Jamaica, New York.

Number Holder (NH).

Wage earner – Title II.

Numident (NUMI).

SSA master file based on SSN; contains all names used by the number holder, mother and father’s names, date of birth, date of death, etc.

Occasionally.

Occurring from very little up to one-third of the time.

Occupation.

Synonymous with the term “job title” in the Dictionary of Occupational Titles.

Occupational Base.

The occupational base is the number of occupations, as represented by RFC, that an individual is capable of performing. These “base” occupations are unskilled in terms of complexity. The regulations take notice of approximately 2,500 medium, light, and sedentary occupations; 1,600 light and sedentary occupations; and 200 sedentary occupations. Each occupation represents numerous jobs in the national economy. (In individual situations, specific skilled or semi-skilled occupations may be added to the base.)

Office of Central Operations (OCO).

The payment center for processing disability claims located in SSA headquarters in Baltimore, MD.

Office of Disability Adjudication & Review (ODAR).

The part of SSA that conducts hearings on Social Security claims that have been denied. This is not the same agency that denied the initial application and the reconsideration.

Office of General Counsel (OGC).

The part of SSA that, among other things, accepts service of process on the Commissioner of Social Security and handles litigation against the Social Security Administration.

Office of the Inspector General (OIG).

Investigative department of SSA that handles all SSA investigations. OIG investigates allegations of fraud by beneficiaries and SSA employees. It also investigates and evaluates SSA programs.

Old-Age, Survivor & Disability Insurance (OASDI).

The Social Security programs that provide monthly cash benefits to wage earners and dependents when the wage earner retires, to surviving dependents, and to disabled worker beneficiaries and their dependents.

Overpayment (OP).

An overpayment is an excess payment. It is the total amount an individual received for any period which exceeds the total amount that should have been paid for that period.

Past Relevant Work (PRW).

Work a claimant performed within the last 15 years which lasted long enough for him or her to learn the job and which was substantial gainful activity.

Physical Demands.

Jobs classified in terms of sedentary, light, medium, heavy, and very heavy exertion as both the regulations and the Dictionary of Occupational Titles (DOT) define those terms:

1. Sedentary Work

involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although sedentary jobs involve sitting, they also require a certain amount of walking and standing to carry out job duties. Jobs are sedentary if they require occasional walking and standing, provided other sedentary criteria are met. Because sedentary occupations may require occasional standing and walking, the actual periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday. Work processes in specific occupations will dictate how often and how long a claimant needs to be on his or her feet to obtain or return small articles. By its very nature, work performed primarily in a seated position entails no significant stooping. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.

2. Light Work

involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Since frequent lifting or carrying requires a claimant to be on his or her feet up to two-thirds of a workday, the full range of light work requires standing or walking for a total of approximately 6 hours of an 8-hour workday. Even though the weight a claimant lifts in a particular light job may be minimal, the regulations classify a job as light work when it requires a significant amount of walking or standing—the primary difference between sedentary and most light jobs.

A job is also in this category when it involves sitting most of the time with some pushing and pulling of arm-hand or leg-foot controls requiring greater exertion than in sedentary work; e.g., mattress sewing machine operator, motor-grader operator, and road-roller operator (skilled and semi-skilled jobs in these particular instances). Relatively few unskilled light jobs are performed in a seated position. The lifting requirements for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping. Many unskilled light jobs are performed in one location—in which case the ability to stand is more critical than the ability to walk. Light jobs require the use of arms and hands to grasp, hold, and turn objects. They generally do not involve the use of the fingers for fine activities to the extent required in most sedentary jobs.

3.Medium Work

involves lifting no more than 50 pounds at a time with frequent lifting of objects weighing up to 25 pounds. A full range of medium work requires standing or walking for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying of objects up to 25 pounds. As with the requirements of light work, sitting may occur intermittently during the remaining time. In contrast to the fine precision activities of the fingers and hands required by sedentary work, medium work generally requires only use of the arms and hands to grasp, hold, or turn objects.

The full range of medium work requires both considerable lifting and frequent bending-stooping (“stooping” is a type of bending in which a person bends his or her body downward and forward by bending the spine at the waist; “crouching” is bending both the legs and spine in order to bend the body downward and forward). This activity requires flexibility of the knees as well as of the torso. However, relatively few occupations in the national economy require lifting, pushing or pulling activities from primarily a sitting position; e.g., taxi driver, bus driver, a tank-truck driver (semi-skilled jobs). In most medium jobs, the critical requirement is being on one’s feet for most of the workday. An individual’s ability to perform frequent lifting or carrying of objects weighing up to 25 pounds is often more critical than being able to lift up to 50 pounds at a time.

4. Heavy Work

involves lifting objects weighing more than 100 pounds. If a claimant can do very heavy work, he or she can also engage in heavy, medium, light, and sedentary work.

Plan for Achieving Self Support (PASS)

. An SSI work incentive program that, if approved by SSA, allows an SSI eligible individual to set aside money and/or things he or she owns to pay for items or services needed to achieve a specific work goal without violating the SSI income or asset limitations.

Prescribed Period (PP).

The period of time not exceeding 7 years and ending with a qualifying date during which a claimant may establish entitlement to disabled widow(er)s benefits.

Presumed Maximum Value (PMV).

An SSI term used in the POMS, presumed maximum value is a regulatory cap on the amount of chargeable in-kind support and maintenance which is not subject to the value of the one-third reduction rule. The PMV for an individual equals one-third the individual SSI federal benefit rate plus $20 (the general income exclusion).

Presumptive Disability (PD).

Presumptive Disability payments are made to a person who is initially applying for SSI based on an allegation of disability or blindness, and whose medical condition is such that it presents a h2 likelihood that the person will be found disabled under SSA rules. The person must meet all nonmedical factors of eligibility. The payments continue for up to 6 months pending a formal determination of disability. If the claim is ultimately denied, SSA does not claim an overpayment.

Primary Insurance Amount (PIA).

The PIA is the figure from which almost all cash benefit amounts are derived, including monthly benefits for workers, their dependents, and their survivors. The PIA is based on an individual’s taxable earnings averaged over the working lifetime to yield a monthly benefit that partly replaces the earned income lost because of retirement, disability, or death.

Prisoner Update Processing System (PUPS).

An SSA database that records prisoner information by inmate’s SSN.

Privacy Act of 1974 (PA).

The Privacy Act requires federal agencies to publish in the Federal Register notices of systems of records they maintain which contain personal information about individuals. Under the Privacy Act, information about an individual is generally not disclosed without the individual’s consent, except as provided by that law.

Program Operations Manual System (POMS).

The largest system of internal instructions used by SSA employees and by the employees of the state agencies who make disability determinations. A public version is available from SSA’s website, www.socialsecurity.gov.

Program Policy Statement (PPS).

Used to indicate that a Social Security Ruling has far-reaching importance.

Program Service Center (PSC).

Program service centers are located in Birmingham,Alabama; Chicago, Illinois; Kansas City, Missouri; Jamaica, New York; Philadelphia,Pennsylvania; and Richmond, California. These offices, along with the Office of Central Operations in Baltimore, Maryland, house and service the records of individuals who are receiving Social Security benefits.

Protective filing date.

The effective filing date of an application for benefits which is before the actual filing date pursuant to SSA regulations.

Prototype states.

Ten states (Alabama, Alaska, Colorado, Louisiana, Michigan, Missouri, New Hampshire, Pennsylvania, and parts of New York and California) where SSA is experimenting with eliminating the reconsideration step.

Quarters of Coverage (QCs).

Social Security credits are earned for a certain amount of work under Social Security.

Range of Work.

Occupations existing at an exertional level.

Reconsideration (RECON).

If a person is not satisfied with the determination on a claim, he or she may request a reconsideration and submit new evidence if available.

Regional Chief Administrative Law Judge (RCALJ).

The head administrative law judge in one of SSA’s ten regions.

Regional Office (RO).

Regional SSA headquarters in one of SSA’s ten regions.

Residual Functional Capacity (RFC).

What a claimant can do in a work setting in spite of the functional limitations and environmental restrictions imposed by his or her medically determinable impairment(s). RFC is the maximum degree to which the claimant retains the capacity for sustained performance of the physical and mental requirements of jobs. RFC assessment is done by SSA decision makers.

Retirement, Survivors, Disability Insurance (RSDI).

The social security program that pays benefits to persons who are retired, eligible dependents of deceased workers, or disabled workers.

Sequential Evaluation.

A multi-step process that decision makers use to determine whether a claimant is or continues to be disabled.

Severe Impairment.

An impairment or combination of impairments that significantly limits one’s physical or mental ability to do basic work activities, the abilities and aptitudes necessary to do most jobs. Examples of basic work activities include: walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting.

Skill.

Knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation which is above the unskilled level (requires more than 30 days to learn). It is practical and familiar knowledge of the principles and processes of an art, science, or trade, combined with the ability to apply them in practice in a proper and approved manner. This includes activities like making precise measurements, reading blueprints, and setting up and operating complex machinery. A skill gives a person a special advantage over unskilled workers in the labor market.

Skill Level.

A work classification whereby work is defined according to skill requirements. The requirements of the different skill levels are set forth in SSA regulations as follows:

1.

—Unskilled

work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. The job may or may not require considerable strength. For example, SSA considers jobs unskilled if the primary work duties are handling, feeding, and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or machine tending, a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled work.

2.

—Semi-skilled

work is work which needs some skills but does not require doing the more complex work duties. Semi-skilled jobs may require alertness and close attention to watching machine processes; or inspecting, testing or otherwise looking for irregularities; or tending or guarding equipment, property, material, or persons against loss, damage or injury; or other types of activities which are similarly less complex than skilled work, but more complex than unskilled work. A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks.

3.

—Skilled

work requires qualifications in which a person uses judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced. Skilled work may require laying out work, estimating quality, determining the suitability and needed quantities or materials, making precise measurements, reading blueprints or other specifications, or making necessary computations or mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity.

Social Security Disability Insurance (SSDI).

The official name of the Social Security disability program.

Social Security Ruling (SSR).

Precedential decisions of the Social Security Administration, including program policy statements, Appeals Council decisions, opinions of the Office of General Counsel, etc. When SSA finds a court decision to be an accurate statement of SSA policy, SSA may also issue that decision as a Social Security Ruling.

Southeastern Program Service Center (SEPSC).

An SSA regional payment center located in Birmingham, Alabama.

Specific Vocational Preparation (SVP).

Training time. The specific vocational preparation (SVP) is the amount of time required to learn the techniques, acquire information, and develop the facility needed for average performance in a specific job-worker situation. The SVP classification attaches to the specific occupation and not to the time required for a given individual to learn the techniques, etc., of that occupation.

SSDC.

Concurrent claim for Social Security disability and SSI benefits.

SSI Windfall Offset.

The overpayment of SSI benefits which is deducted from Title II benefits as a result of full SSI benefits being paid for a month in which a beneficiary will later receive a Social Security disability benefit payment.

State Agency (SA).

Initial and reconsideration disability claims are processed by an agency of the state government that has a contract with the federal government to make disability decisions.

Substantial Gainful Activity (SGA).

Involves significant physical or mental activities in a work setting and is usually done for pay or profit, regardless of whether a profit is realized.

a. Substantial work activity. Substantial work activity is work activity that involves doing significant physical or mental activities. Work may be substantial even if it is done on a part-time basis or if an individual does less, gets paid less, or has less responsibility than he or she had before.

b. Gainful work activity. Gainful work activity is work activity that an individual does for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.

c. Some other activities. Generally, SSA does not consider activities like self-care household tasks, hobbies, therapy, school attendance, club activities, or social programs to be substantial gainful activity.

Summary Earnings Query (SEQY).

An SSA computer query that shows a number holder’s annual income reported to SSA.

Supplemental Security Income (SSI).

A cash assistance program funded and administered by the federal government for low-income individuals who are aged, blind, or disabled.

Supplemental Security Income Display (SSID).

A query showing SSI information from the database known as the Supplemental Security Record (SSR).

Temporary Assistance to Needy Families (TANF).

Cash assistance program serving needy families with children that is funded jointly by federal and state governments and administered by state and county departments. This program replaced AFDC in 1996.

Ticket to Work.

The Ticket to Work Program provides most people receiving Social Security benefits choices for receiving employment services. Under this program SSA issues a ticket to an eligible beneficiary who, in turn, may choose to assign the ticket to an Employment Network (EN) of the beneficiary’s choice to obtain employment services, vocational rehabilitation services, or other support services necessary to achieve a vocational (work) goal. The EN, if it accepts the ticket, will coordinate and provide appropriate services to help the beneficiary find and maintain employment.

Title II (T II, T-2).

Social security benefits; retirement, survivors and disability benefits are authorized under Title II of the Social Security Act.

Title XVI (T XVI, T-16).

Supplemental Security Income benefits are authorized under Title XVI of the Social Security Act.

Title XVIII (T XVIII, T-18).

Medicare program. Benefits for hospital insurance and supplementary medical insurance are authorized under Title XVIII of the Social Security Act.

Title XIX (T XIX, T-19).

See Medicaid.

Trial Work Period (TWP).

A trial work period is provided as an incentive for personal rehabilitation efforts for disabled workers receiving Social Security disability benefits who are still disabled but return to work. It allows them to perform services in as many as nine months without affecting their right to benefits during the trial work period if their impairment does not improve during this period.

Trait.

A vocationally relevant attribute or characteristic which permits a person to properly perform a work activity. Traits are relevant whether learned or innate. Traits are not skills. A musician requires both a good sense of pitch and fine finger dexterity (traits) to play a piece of music by ear without error (skill); a lab researcher may require acute vision (trait) to identify a particular bacteria found in a culture (skill); a machinist must rely on perception of size and shape (trait) to cut material within certain tolerances (skill).

Transferability of skills.

An individual is considered to have skills that can be used in other jobs when the skilled or semi-skilled work activities done in past work can be used to meet the requirement of other skilled or unskilled work activities.

Transferability is most probable and meaningful among jobs in which:

1. The same or a lesser degree of skill is required;

2. The same or similar tools and machines are used; and

3. The same or similar raw materials, products, processes, or services are involved.

Underpayment (UP).

An amount due a person that has not been paid. Underpayments usually result from unpaid accrued benefits or unnegotiated checks.

United States Code (USC).

The compilation of all U.S. laws organized into different “titles.” The Social Security Act is found in Title 42 of the United States Code, which is entitled “The Public Health and Welfare.”

Unsuccessful Work Attempt (UWA).

Work lasting up to six months that the claimant is forced to stop or reduce below the SGA level because of the claimant’s disability. Such work is disregarded when evaluating the claimant’s disability under the sequential evaluation process.

Value of the One-Third Reduction (VTR).

For the SSI program, value of the one-third reduction, referred to as VTR in the POMS, is countable in-kind support and maintenance valued at one-third of the individual’s or couple’s Federal benefit rate (as applicable).

Veterans Administration (VA).

A federal agency that administers programs for US veterans.

Vocational Adjustment.

Vocational Adjustment involves an interaction of a claimant’s residual functional capacity (RFC) with his or her age, education, and work experience in order to decide whether the claimant can adjust to jobs which he or she may be vocationally qualified to do.

Vocational Expert (VE).

An expert witness who provides an opinion about vocational issues for use at a disability hearing, either in person or in answer to interrogatories.

Vocational Factors.

An individual’s age, education, and work experience.

Wage Earner (WE).

An individual working under and paying wages covered under the Social Security system.

Waiting Period (WP).

Five consecutive full calendar months beginning with the earliest full calendar month throughout which the worker was under a disability and had disability insured status for benefit purposes. No T-2 benefits are paid during the waiting period.

Western Program Service Center (WNPSC).

An SSA regional payment center located in Richmond, California.

Widow or Widowers Insurance Benefits (WIB).

Social Security benefits paid to a surviving spouse of a deceased worker who was insured under the social security program.

Windfall Offset.

The reduction in retroactive Title II benefits equal to the amount of SSI payments a recipient would not have received had Title II been paid on time.

Workers Compensation (WC).

State laws that ensure medical care and cash benefits to a worker injured in connection with a job, or cash benefits to dependents if the worker is killed. There is a limit on the amount of Social Security disability benefits plus worker’s compensation benefits a recipient may receive.

Alcohol or drug addiction

By After an unfavorable decision, Legal issues

Alcohol or Drug Addiction and Social Security Disability

Since the enactment of the Senior Citizen’s Right to Work Act of 1996, the courts have been faced with how substantively to apply the amendments when evaluating eligibility for disability benefits. The following survey of decisions includes Social Security disability cases in which the courts have either (1) substantively applied the new amendments, or (2) noted the likely result had the new amendments been applied.

Statutes

The Senior Citizen’s Right to Work Act of 1996 (“Right to Work Act”), Pub. L. No. 104-121, 110 Stat. 847-57 (1996) (amending 42 U.S.C. §§ 423(d)(2) & 1382(c)) eliminated alcoholism as a basis for obtaining disability insurance and Supplemental Security Income benefits. Section 105(a)(1)(C) of the Act provides, in pertinent part, that “[a]n individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor to the Commissioner’s determination that the individual is disabled.”

Tip

In many cases, alcohol or drug addiction is a symptom of an underlying mental or physical impairment.

Regulations

20 C.F.R. §§ 404.1535, 416.935

The listed regulations govern how the SSA determines whether a claimant’s drug addiction or alcoholism is a contributing factor material to the determination of disability. In general, if the SSA finds that a claimant is disabled and has medical evidence of drug addiction or alcoholism, the SSA must determine whether the drug addiction or alcoholism is a contributing factor material to the determination of disability.

The key factor to be examined in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether the SSA would still find a claimant disabled if the claimant stopped using drugs or alcohol. The SSA will first evaluate which of the claimant’s current physical and mental limitations, upon which it based the current disability determination, would remain if the claimant stopped using drugs or alcohol. The SSA will then determine whether any or all of the claimant’s remaining limitations would be disabling. If the remaining limitations would not be disabling, the SSA will find that drug addiction or alcoholism is a contributing factor material to the determination of disability. If the SSA determines that the remaining limitations are disabling, the claimant will be deemed disabled independent of drug addiction or alcoholism and the SSA will find that drug addiction or alcoholism is not a contributing factor material to the determination of disability.

Case Law

First Circuit

In Brown v. Apfel, 71 F. Supp.2d 28 (D.R.I. 1999), the court held that substantial evidence supported the ALJ’s conclusion that the claimant’s alcoholism was a contributing factor material to a finding of disability. Id.at 36-37. The court reasoned that even the examining physician could separate the effects of his alcoholism from his other conditions, so that his conditions were not “inextricably intertwined.” Since the claimant would not be disabled absent his alcoholism, the ALJ’s finding that alcoholism was a contributing factor material to the finding of disability was entirely appropriate. Id.at 40.

Second Circuit

In remanding a case, a New York district court directed that the ALJ to properly evaluate the effect that the claimant’s alcohol abuse has on her impairments, if any. O’Halloran v. Barnhart, 328 F. Supp.2d 388, 395 (W.D.N.Y. 2004). The court found that the ALJ erred in stating that he could not consider “any limitations associated with the claimant’s past history of alcohol abuse, since such limitations may have provided the sole basis for a finding of ‘disabled,’ given that the lack of any limitations associated with the claimant’s other impairments do not provide any support for a finding of ‘disabled.’” Id.at 395-95. As the court explained, the Commissioner must evaluate which of a disabled person’s current physical and mental limitations would remain if a claimant stopped using alcohol, and then determine whether those remaining limitations would be disabling and “[i]f her remaining limitations would still be disabling, then alcoholism will not be a contributing factor material to the determination of disability and the disabled person will be eligible for benefits.” Id. at 395, citing 20 C.F.R. § 404.1535(b)(2) Accordingly, the court concluded:

when proceeding through the five-step sequential evaluation, the ALJ should consider all of the effects of plaintiff’s impairments, including those associated with alcoholism or drug addiction, if any. Only after finding that plaintiff is disabled should the ALJ determine which of these impairments would remain if plaintiff stopped using alcohol.

Id.

In Frederick v. Barnhart, 317 F. Supp.2d 286 (W.D.N.Y. 2004), the court held that the ALJ’s finding that alcohol was a contributing factor material to the finding of disability was based on legal error and the ALJ erred by failing to determine which of the claimant’s “mental impairments would still exist if she stopped using alcohol and by failing to determine whether these limitations would be disabling.” Id. at 293. The court further held that the application of the correct legal standards compelled the conclusion that the claimant would still be disabled as a result of mental impairments even if she stopped using alcohol, and remanded for an award of benefits. Id. The court noted that the ALJ failed to cite to evidence in the record which supported his conclusion that if the claimant stopped using alcohol, “her other obvious mental impairments would somehow evaporate” or that the claimant’s “mental functional limitations would significantly improve if she no longer used alcohol.” Id. at 299. The court further found that the ALJ’s conclusions conflicted with the medical records from the claimant’s treating sources that indicated that the claimant’s primary diagnoses were “serious mental illnesses with a secondary issue concerning alcohol abuse, an abuse frequently tied to plaintiff’s efforts to alleviate the symptoms of her mental disease.” Id.

In White v. Comm’r of Soc. Sec., 302 F. Supp.2d 170 (W.D.N.Y. 2004), the court held that the ALJ erred in finding that the claimant’s alcohol dependence was a contributing factor material to the claimant’s disability because he failed to explain sufficiently the basis for his decision and did not correctly assess the claimant’s credibility. Id. at 174. The court noted that the ALJ did not cite to any record evidence which supported his conclusion regarding the effects of the claimant’s alcoholism on his mental impairments. Id. at 174. The court rejected the Commissioner’s request for a remand so that the ALJ could have another opportunity to state the basis for his decision and, instead, remanded for the payment of benefits. Id. The court noted that the Commissioner already had an opportunity to correct this error but “choose not to do so when the Appeals Council summarily denied plaintiff’s request for review” and, further, upon consideration of all of the relevant evidence and the application of the proper legal standards, “substantial evidence exists that plaintiff’s disabling mental impairments would continue absent plaintiff’s alcohol dependence.” Id.

In Downs v. Apfel, 9 F. Supp.2d 230 (W.D.N.Y. 1998), the court held that since the ALJ did not evaluate the claimant’s alcohol abuse or dependence according to this standard, remand was required to afford the claimant “an opportunity to demonstrate that he would have been disabled if he had stopped using alcohol.” Id. at 234.

In Williams v. Callahan, 30 F. Supp.2d 588(E.D.N.Y.1998), the court reversed and remanded where the evidence showed that the claimant had a pre-existing mental impairment before she lost her job and before she began to use crack, as demonstrated by her treatment for manic-depression by the Postal Service psychiatrist. Id. at 593. The court noted that this suggested that the claimant suffered from a mental condition independent of and pre-existing to her drug abuse. Id. at 594.

In a footnote, a New York district court acknowledged that if the claimant’s alcohol abuse had been a contributing factor material to the disability determination, the court’s review of that decision would have ceased, given the enactment of the Contract With America Advancement Act of 1996. Dombrowski v. Chater, 960 F. Supp. 558, 568 n. 1 (N.D.N.Y. 1997).

The court held that the claimant was precluded from being awarded disability insurance benefits based upon his alcohol and drug abuse problems pursuant to the recent amendments to statutory provisions governing drug and alcohol disability benefits. Connor v. Chater, 947 F. Supp. 56, 62 (N.D.N.Y. 1996).

In Porter v. Chater, 982 F. Supp. 918 (W.D.N.Y. 1997), the claimant wrote a letter to the Appeals Council in which he argued that his substance abuse was a contributing factor that was not properly considered by the Commissioner in his decision. Id. at 921. In light of this letter, the court found that there was little question that the claimant’s alcohol abuse would be material to the disability issue.Id. at 922, citing 20 C.F.R. § 404.1535. See also Orbaker v. Apfel, 70 F. Supp.2d 291, 295-96 (W.D.N.Y. 1999) (holding that the ALJ’s decision that the claimant’s alcoholism was a contributing factor material to the determination of the claimant’s disability was supported by substantial evidence, and that the record supported the ALJ’s conclusion that many of his periods of depression were the product of his alcohol abuse and that they abated significantly when he abstained from alcohol).

Third Circuit

A Pennsylvania district court held that where alcoholism was an issue, an ALJ must identify at least some medical evidence supporting the conclusion that a claimant no longer would be disabled if he or she stopped drinking or taking drugs. Sklenar v. Barnhart, 195 F. Supp.2d 696, 700 (W.D. Pa. 2002). In this case, the court found that none of the medical evidence identified by the ALJ was sufficient to support his finding that the claimant would not be disabled if she quit drinking. Id. at 703. To the contrary, nearly everymedical opinion of record contained diagnoses of alcohol abuse and mental impairments, with no consideration of whether or how the cessation of alcohol consumption would impact the claimant’s limitations. Id.at 703-704.

Fourth Circuit

In Mitchell v. Commissioner of the Soc. Sec. Admin., 182 F.3d 272 (4th Cir. 1999), cert. denied, 528 U.S. 944 (1999), the claimant challenged the constitutionality of the SSA’s provisions prohibiting a claimant from receiving benefits if alcoholism was a contributing factor material to such determination. Id.at 273. The Fourth Circuit held that the challenged provisions did not violate equal protection principles, since they were rationally related to legitimate government interest in discouraging alcohol and drug abuse and were “rationally related to this purpose in that it withholds social security benefits from those who likely would use the funds to purchase alcohol or drugs.” Id.at 275.

A Virginia district court agreed with the claimant that the ALJ failed to properly evaluate the impact of alcoholism on the claimant’s ability to work. McGhee v. Barnhart, 366 F. Supp.2d 379, 389 (W.D. Va. 2005). The ALJ had found that the claimant’s only severe impairments were alcohol and drug abuse and then proceeded to evaluate the impact of his alcoholism within the five-step analysis. The court noted that the under the regulations, “an ALJ must first conduct the five-step disability inquiry without considering the impact of alcoholism or drug addiction.” Id. Only if the ALJ finds that the claimant is disabled and there is “medical evidence of [his or her] drug addiction or alcoholism,” should the ALJ proceed to determine whether the claimant “would still [be found] disabled if [he or she] stopped using alcohol or drugs.” Id., citing 20 C.F.R. § 404.1535. “In other words, if, and only if, an ALJ finds a claimant disabled under the five-step disability inquiry, should the ALJ evaluate whether the claimant would still be disabled if he or she stopped using drugs or alcohol.” Id. In this case, the ALJ erred in not first finding that the claimant was disabled under the five-step disability analysis before evaluating the impact of his alcoholism on that disability. Id.

In McCall v. Apfel, 47 F. Supp.2d 723 (S.D. W.Va. 1999), the claimant asserted that the Commissioner’s decision was based on an erroneous determination that the claimant’s alcoholism was a present impairment which was a contributing factor material to his disability. Id. at 727. In McCall, a medical expert testified at the claimant’s hearing that if he was no longer drinking, his impairments met the requirements of a listed impairment, but she had reservations regarding whether he had, in fact, stopped drinking. Id.at 729. Based, in part, on this testimony, the ALJ concluded that the claimant’s alcoholism was not in remission and that it was a contributing factor to his disability, warranting the termination of his benefits under the new law. Id. at 729-30. The court held that the ALJ was required to determine whether or not the claimant was still drinking. Id.at 731.

Fifth Circuit

The Fifth Circuit held that the retroactive application of the new drug and alcohol amendments that barred the receipt of benefits when drug or alcohol addiction is a material contributing factor, was constitutional. Brown v. Apfel, 192 F.3d 492, 496-97 (5th Cir. 1999). As a matter of first impression, the court further held that the claimant bears the burden of proof to establish that drug or alcohol addiction is not a contributing factor material to her disability. Id.at 497-98. The Fifth Circuit found that the claimant failed to carry her burden of proof, but noted that she had no notice or knowledge that she would be required to carry this burden until the day of the hearing. Id.at 498. Since the court had not yet considered the issue, the Fifth Circuit vacated the portion of the district court’s opinion that held that substantial evidence supported the ALJ’s finding that alcohol abuse was a contributing factor material to her disability, and remanded the case for further evidentiary gathering. Id. at 499.

In Doherty v. Barnhart, 285 F. Supp.2d 883 (S.D. Tex. 2003), the court held that the ALJ’s finding that the claimant’s alcoholism was a contributing factor material to the disability determination and precluded him from receiving Social Security benefits during the closed period at issue, between July 15, 1996 and November 4, 1997, was supported by substantial evidence. Id.at 885. The court also held that the ALJ’s determination that the claimant’s physical and mental impairments had improved in November 1997, following his cessation of drinking. Id. at 896.

Sixth Circuit

In Williams v. Barnhart, 338 F. Supp.2d 849 (M.D. Tenn. 2004), the court held that the ALJ failed to follow the regulatory procedure for evaluation of drug addiction, established in 20 C.F.R. § 404.1535. Id. at 862. The court explained that “[t]o find that drug addiction is a contributing factor material to the determination of disability without first finding the claimant disabled, as the ALJ did here, is to put the cart before the horse.” Id. at 862-63, citing Drapeau v. Massanari, 255 F.3d 1211, 1214-15 (10th Cir. 2001) (holding that “the implementing regulations make clear that a finding of disability is a condition precedent to an application of § 423(d)(2)(C)” and the “Commissioner must first make a determination that the claimant is disabled” before making a determination whether the claimant would still be found disabled if he or she stopped abusing drugs”); Brueggemann v. Barnhart, 348 F.3d 689, 693-95 (8th Cir. 2003) (noting that 20 C.F.R. § 404.1535 “plainly requires the existence of a ‘current disability determination’ before the substance use disorders are even considered”). The court further observed that the failure of the ALJ to cite 20 C.F.R. § 404.1535 or § 416.935 “reflect his misunderstanding of the procedure to be followed in analyzing the impact of plaintiff’s drug addiction.” Id.at 863. Finally, the court rejected the Commissioner’s argument that the ALJ’s failure to cite to the regulations was “inadvertent and, at worst, a harmless error . . . .” Id. at 863.

In Davis, the court found that no evidence existed that the claimant’s low intellectual finding (IQ score of less than 59) was caused or exacerbated by drug or alcohol use and therefore alcohol and drug abuse was found not to be a contributing factor to the claimant’s disability.Davis v. Apfel, 133 F. Supp.2d 542, 549 (E.D. Mich. 2001).

Seventh Circuit

The Seventh Circuit held that in order to ascertain whether alcoholism or drug addiction is a contributing factor material to disability, the SSA must consider whether the claimant would be found disabled if his alcohol or drug use ceased. Maggard v. Apfel, 167 F.3d 376, 379 (7th Cir. 1999),citing 20 C.F.R. §§ 404.1535, 416.935.In Maggard, the claimant argued that the amendments to the Social Security Act regarding alcoholism and drug addiction applied only to those for whom the onset of disability occurred after the date of enactment.The court noted that while the ALJ did not consider these amendments because they were enacted after his decision, he regarded the claimant’s alcoholism as one of the contributing factors to his inability to work.Thus, the court found that the claimant failed to establish entitlement to disability benefits.The court explained that had the ALJ found the claimant to be disabled and had he included alcoholism as a contributing factor to that determination, then the court would have had to consider whether the amendments made the ALJ’s reliance on the claimant’s alcoholism improper. Id. However, since the ALJ found the claimant not disabled, the court’s review on appeal was limited to whether the ALJ’s decision was based upon substantial evidence. Id.

An Illinois district court noted that the amendments to 42 U.S.C. § 423(d)(2)(C) were promulgated with the dual purpose of “conserving limited resources while promoting rehabilitative behavior among substance abusers.” Stengel v. Callahan, 983 F. Supp. 1154, 1156, 1157, 1163 (N.D. Ill. 1997), citing P.L. 104-121 § 103 (1996).The court explained that Congress decided that payment of disability benefits to alcoholics and drug addicts encouraged such recipients to continue their addictions in order to keep receiving benefits and that the amendment operates to deter drug and alcohol abuse by “rerouting federal funds” from disability benefits awards to state sponsored drug and alcohol treatment. Id., citing H.R. Rep. 104-379, at 20, and P.L. No. 1040121, § 105(d) (1996).The court explained further that:

The legislative history indicates that Congress did not intend to terminate benefits to those who have qualifying disabilities in addition to a substance abuse problem. For instance, the House Committee Report notes that ‘[i]ndividuals with drug addiction and/or alcoholism who have another severe disabling condition (such as AIDS, cancer, cirrhosis) can qualify for benefits [under the new law] based on that disabling condition.

Id.at 1165, quoting H.R. Rep. 104-379, at 19 (1996).In Stengel, the court held that the amendment “is not so ‘wholly unrelated to the objective of the statute’ as to deny [the claimant] due process and equal protection under the laws,” and consequently rejected the claimant’s due process and equal protection challenges. Id. at 1167.

A district court in Indiana noted that since the record was not clear as to whether or to what extent the claimant’s drug use contributed to her mental impairments, and that such an assessment was crucial to the determination of whether the claimant was entitled to SSI benefits, remand was warranted. Jones v. Apfel, 997 F. Supp. 1085, 1093 (N.D. Ind. 1997), citing 20 C.F.R. § 416.935(b)(1). The court confirmed that where there was a question concerning whether alcoholism or drug addiction is a “contributing factor” material to a finding of disability, the determination turns on whether the claimant has a disability independent of the alcoholism or drug addiction. Id. See also Davis v. Chater, 952 F. Supp. 561, 568 (N.D. Ill. 1996) (since it was not known from the record whether non-alcohol-related factors rendered the claimant unable to work (independent of the alcohol abuse), and since such determinations were crucial in assessing the claimant’s entitlement to benefits under the newly-enacted legislation, remand was required).

An Illinois district court noted that it was unnecessary to determine whether the new law regarding alcohol or drug addiction applied, since the court upheld that ALJ’s finding that, even if substance abuse could be disabling in theory, the claimant’s actual involvement with drugs and alcohol was not. Johnson v. Chater, 969 F. Supp. 493, 507 (N.D. Ill. 1997).

Eighth Circuit

The issue presented in Brueggemann v. Barnhart, 348 F.3d 689 (8thCir. 2003) was how Social Security regulations concerning alcohol abuse should be applied. Id.at 691. The court held that the ALJ erred at step four of the sequential evaluation process in discrediting the evidence from the claimant’s treating physician based on the ALJ’s conclusion that alcohol use could not form the basis for disability. Id.at 693. The court noted that the ALJ failed to cite 20 C.F.R. § 404.1535 anywhere in his decision, and that this failure was not a mere drafting oversight, as the Commissioner claimed, but accurately reflected his failure to follow its procedures. Id.at 693-94. This regulation requires the ALJ to first determine whether the claimant was disabled. Id.at 694. The ALJ is required to reach this determination initially, using the standard five-step sequential evaluation process, without segregating out any effects that might be due to substance use disorders, and the determination must be based on substantial evidence of the claimant’s medical limitations without deductions for the assumed effects of substance use disorders. Id.In cases where the “gross total of a claimant’s limitations, including the effects of substance use disorders, suffices to show disability, then the ALJ must next consider which limitations would remain when the effects of the substance use disorders are absent.” Id. at 694-95. As the Eighth Circuit summarized:

Only after the ALJ has made an initial determination that 1) Brueggemann is disabled, 2) determined that drug or alcohol use is a concern, and 3) obtained substantial evidence on the record showing what limitations would remain in the absence of alcoholism or drug addiction, may he then reach a conclusion on whether Brueggemann’s substance use disorders are a contributing factor material to the determination of disability.

Id.at 695. The court also noted that if the ALJ is unable to determine whether a substance use disorder is a contributing factor material to the claimant’s disability, the claimant’s burden is met and an award of benefits must follow, in accordance with Social Security Administration Emergency Teletype, No. EM-96-94 at Answer 29 (Aug. 30, 1996). Id. at 693. As the court was unable to determine whether the ALJ would have reached the same decision denying benefits, even if he had followed the proper procedure by giving due weight to the medical evidence without factoring in the claimant’s alcoholism, the legal error was not harmless. Id.at 695-96.

The Eighth Circuit noted that it is the claimant’s burden to show that alcoholism or drug addiction is not material to the finding of disability. Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000). As reiterated by the Eighth Circuit, “[t]he focus of the inquiry is on the impairments remaining if the substance abuse ceased, and whether those impairments are disabling, regardless of their cause.” Id.at 903, citing 20 C.F.R. § 404.1535(b)(1); Jackson v. Apfel, 162 F.3d 533, 537 (8th Cir. 1998). In Pettit, the claimant argued that he stopped drinking in 1994, long before the ALJ found that he suffered from depression, which met the requirements of Listing 12.04.Id.at 903. The court noted that there was evidence that the claimant “stopped drinking and yet continued to suffer from depression,” as he demonstrated symptoms of depression long after he entered treatment for alcoholism and received medication and therapy for his depression. Id.The court pointed out that the ALJ’s decision predated the more recent holding in Jackson, 162 F.3d at 535, 537, “that even if long-term alcohol abuse causes a disability, alcoholism will not be found ‘material’ to the finding of disability if the disability remains after the claimant stops drinking.” Id. at 904. Consequently, on remand, the court ordered the ALJ to address the claimant’s allegation that he was disabled by depression, stating:

[The claimant] will have the burden of showing that alcoholism is not material to his disability. He may thus attempt to show that, absent drinking, his depression meets the requirements of § 12.04, and, if he is unable to do so, he must establish that, absent drinking, his depression prevents him from performing his past relevant work. If he does so, the burden then shifts to theSocial Security Administration to showthat if [the claimant] does not drink, he can perform other jobs available in the national economy.

Id.at 904, citing Cox v. Apfel, 160 F.3d 1203 (8th Cir. 1998).

The court reversed the ALJ’s decision denying benefits to a claimant where medical reports stated that the claimant had not been drug free her entire adult life. Hildebrand v. Barnhart,302 F.3d 836, 839 (8th Cir. 2002). The court reasoned that such reports did not support the ALJ’s decision that the claimant would not be disabled independent of her drug addiction.Id.

In Jackson v. Apfel, 162 F.3d 533 (8th Cir. 1998), the ALJ found that when alcohol was eliminated from the claimant’s life, his mental impairment was not severe. Id.at 537. The court noted that a physician’s conclusion that the claimant was depressed was based on his belief that the claimant remained chemically dependent as the physician opined the claimant would “be able to do simple tasks and carry them out effectively, if he could remain sober.” Id. at 538.As no other evidence of record established “a mental problem . . . which would impact [the claimant’s] ability to perform basic tasks and make decisions required for daily living,” and the claimant himself testified that it was his physical condition, not his alcoholism, which prevented him from working, the court concluded that the ALJ’s findings were consistent with 20 C.F.R. § 404.1535. Id.

In Fastner v. Barnhart, 324 F.3d 981 (8th Cir. 2003), the Eighth Circuit stated that it did not need to resolve the claimant’s claim that the ALJ failed to apply the correct legal standard with regard to his alcohol abuse because the ALJ incorporated the claimant’s alcohol abuse as an impairment into the disability determination, which resulted in a finding that he was not entitled to benefits. Id.at 986. As the court explained:

Generally, a determination under [42] § 423(d)(2)(C)’s implementing regulations, 20 C.F.R. §§ 404.1535(b) and 416.935(b), is only necessary if the ALJ has found that the sum of that individual’s impairments would otherwise amount to a finding of disability. Here, no such initial determination that Fastner would otherwise be entitled to disability was made. Accordingly, the ALJ’s determination with regard to § 423(d)(2)(C) was superfluous, and Fastner’s argument is moot.

Id.

In Rehder v. Apfel, 205 F.3d 1056 (8th Cir. 2000), the court declined to “construe the term ‘medical evidence’ in § 404.1535 as necessitating a medical diagnosis of substance abuse disorder,” as encouraged by the claimant, and concluded that there was sufficient medical evidence of the claimant’s drug use to support the ALJ’s decision, as that term is defined in 20 C.F.R. §§ 404.1512 and 404.1528. Id. at 1059. Where the claimant’s medical records contained several substance-related diagnoses, and laboratory tests confirmed substance abuse at least once during the relevant period, the court held that sufficient medical evidence of the claimant’s drug use was presented to support the ALJ’s finding that drug addiction was a contributing factor material to determination of disability, thus disqualifying the claimant from receiving benefits. Id.

The Eighth Circuit held that substantial evidence supported the ALJ’s findings that the claimant had severe impairments but that alcoholism or drug addiction was a contributing factor to the determination that she was disabled.Slater v. Barnhart, 372 F.3d 956, 957 (8th Cir. 2004). The court noted that the record was “filled with evidence of drug abuse, alcohol abuse, and drug-seeking behavior, including lying and manipulating others to obtain prescription drugs, self-medicating and failing to follow recommended treatments, drinking six bottles of beer and a bottle of wine daily, and overdosing.” Id.

The Eighth Circuit found no record evidence to rebut the ALJ’s finding that “but for alcoholism,” the claimant had no severe impairments, and that there was no medical evidence to refute the ALJ’s finding that the claimant’s seizure disorder, and heart and respiratory conditions were controlled by medication.Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). The Eighth Circuit relied on Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999), in holding that it was the claimant’s burden to prove that drug or alcohol addiction is not a contributing factor material to the disability.Id. The court noted that the claimant, who was represented by counsel, failed to produce any medical evidence to support his claim for disability or his contention that alcoholism did not contribute materially to his disability, such as requesting that the ALJ order additional consultative examinations. Id.

In Freeman v. Apfel, 208 F.3d 687 (8th Cir. 2000), the claimant argued that the ALJ’s decision that he would not have been disabled if he stopped using alcohol was not supported by the record.

Id. at 690. However, the court noted that the claimant was not diagnosed with psychosis during the relevant time period and appeared to be able to socialize, engage in sports, work, and take care of himself when he was not abusing drugs.Id. at 691. Thus, the court held that the ALJ properly did not accord controlling weight to the claimant’s treating physician because the treating physician’s evidence did not pertain to the claimant’s condition during the relevant period and was inconsistent with other substantial evidence that did pertain to the relevant period. Id.

The Eighth Circuit held in Estes v. Barnhart,275 F.3d 722 (8thCir. 2002) that substantial evidence “throughout the record clearly established the interrelation between the claimant’s claimed disabilities and her abuse of alcohol.” Id.at 724. Thus, the ALJ “reasonably concluded” that the claimant would not be disabled if she stopped using alcohol. Id. at 726.

A Missouri district court held that the ALJ did not adequately evaluate the claimant’s substance abuse pursuant to 20 C.F.R. § 404.1535(b). Welch v. Barnhart, 355 F. Supp.2d 1008, 1017-18 (E.D. Mo. 2005). The court noted that the ALJ made findings that the claimant’s alcohol and drug dependence were not disabling and found that a portion of both his medical and physical limitations are due to substance abuse and then concluded that “[e]ven if his mental limitations were disabling, he would be precluded from receiving disability benefits . . . .”Id. at 1019. The ALJ then stated that the law required him to determine the claimant’s RFC absent considering the effects of alcohol and drug use. Id. In holding that the ALJ’s analysis did not accurately reflect the Social Security regulations or Eighth Circuit precedent, the court stated:

The ALJ is required to make findings pursuant to the five-step regulatory framework (20 C.F.R. §§ 404.1520, 416.920), taking into account plaintiff’s alcohol and drug dependence when assessing his RFC, and ability to engage in past, relevant work or other work in the national economy. See Fastner v. Barnhart, 324 F.3d 981, 985 (8th Cir. 2003); Woods v. Barnhart, 2004 WL 1558794, No. 03-2592, slip op. at *8 (D. Kan. July 12, 2004) (“For purposes of step five, the ALJ is required to determine, as a threshold matter, whether plaintiff’s mental impairment is disabling, without considering whether his alcoholism or substance abuse contribute to the impairment.”).

Id. The court specifically rejected the Commissioner’s argument that the ALJ did consider all the claimant’s impairments, including the effects of substance abuse, determining he was not under a disability which obviated the need to evaluate whether the claimant was disabled despite substance use. “A review of the ALJ’s opinion does not reveal any evidence he did, in fact, include the effects of substance abuse in his initial disability assessment” which was “further buttressed by the ALJ’s belief that he was bound by regulations to determine plaintiff’s RFC without considering the effects of alcohol and drug consumption.” Id.

There are several district court cases in the Eighth Circuit discussing the law pertaining to drug and alcoholism. SeeWesterfield v. Apfel, 75 F. Supp.2d 970, 975 (S.D. Iowa 1999) (holding that the ALJ’s finding that alcoholism and drug addiction was a contributing factor to the determination of the claimant’s disability was not supported by substantial evidence, reasoning that regardless of whether or not the claimant had stopped drinking and using drugs, the loss of his small intestine rendered him disabled, and remanding for an award of benefits); Luther v. Chater, 938 F. Supp. 538, 541 n.1 (S.D. Iowa 1996) (remanding case with instructions to consider recent amendments to the Social Security Act pertaining to alcoholism or drug addiction); Boehm v. Chater, 969 F. Supp. 31, 34 (S.D. Iowa 1997) (finding that the record lacked substantial evidence to support the Commissioner’s determination that the claimant’s drug addiction was a contributing factor material to the determination of disability, as the ALJ failed to indicate whether, given her other impairments, the claimant would still be disabled if she stopped using drugs); Richards v. Chater, 964 F. Supp. 1337, 1348 (E.D. Mo. 1997) (holding that given the lack of evidence in the record showing that the claimant exhibited certain debilitating traits prior to her daily use of drugs and her diagnosis of drug dependence, the ALJ’s determination that the claimant’s drug use was material to his finding of disability was supported by substantial evidence on the record); Sailors v. Barnhart, 292 F. Supp.2d 1190, 1195 n. 9 (D. Neb. 2004) (noting that even though the ALJ found a history of alcoholism, given the claimant’s testimony that he had stopped drinking 6 months before the hearing, the ALJ “evidently (and very charitably) concluded that Sailors was not disqualified from benefits as a categorical matter under 42 U.S.C. § 423(d)(2)(C)”); Molloy v. Apfel, 77 F. Supp.2d 1009, 1013 (S.D. Iowa 1999) (finding that there was substantial evidence for the ALJ’s conclusion that the claimant’s alcoholism was a contributing factor to any disability determination as the facts indicated that her alcoholism was not distinct from her disabilities); Matney v. Apfel, 48 F. Supp.2d 897, 902 (W.D. Mo. 1998) (rejecting the claimant’s argument that the ALJ erred in not considering what mental limitations would remain if he stopped drinking as the ALJ properly determined the claimant’s RFC in the absence of drug and alcohol addiction).

Ninth Circuit

The Ninth Circuit held that the “key factor . . . in determining whether alcoholism or drug addiction is a contributing factor material to the determination of disability” is whether an individual would still be found disabled if he or she stopped using alcohol or drugs. Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1997), citing 20 C.F.R. § 404.1535(b)(1).The NinthCircuit reversed the district court’s denial of benefits which was based on the conclusion that the claimant’s mental problems were “intertwined and exacerbated by longstanding substance abuse,” reasoning that in so doing:

the court failed to distinguish between substance abuse contributing to the disability and the disability remaining after the claimant stopped using drugs or alcohol. The two are not mutually exclusive. Just because substance abuse contributes to a disability does not mean that when the substance abuse ends, the disability will too.

Id. at 1245.

The Ninth Circuit held in Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001) that in evaluating whether a claimant’s alcoholism or drug addiction is material to a disability determination, the ALJ must first conduct the five-step sequential disability inquiry without separating out the impact of his alcoholism or drug addiction. Id.at 955. In this case, the ALJ prematurely evaluated the impacted of the claimant’s alcoholism, warranting remand. Id.at 951.

In Ball v. Massanari, 254 F.3d 817 (9th Cir. 2001), the Ninth Circuit held that an “ALJ is required to conduct a ‘differentiating’ analysis to separate the alcoholism and drug-related impairments from the unrelated physical impairments only if the record indicates that the non-substance-abuse-related impairments are ‘severe’ and therefore pass step 2 of the sequential evaluation process.” Id. at 823.

A California district court discussed whether the ALJ properly analyzed the claimant’s disability claim in light of his alcoholism. Lindsay v. Barnhart, 370 F. Supp.2d 1036, 1044 (C.D. Cal. 2005). The court held that the ALJ committed legal error in failing to consider whether the claimant was disabled without removing his “alcoholism from the equation.” Id.

In Saltzman v. Apfel, 125 F. Supp.2d 1014 (C.D. Cal. 2000), the claimant appealed the Commissioner’s termination of his disability benefits effective January 1, 1997, based on his alleged substance abuse. Id.at 1016. The court held that instead of considering whether the claimant’s drug abuse was a “contributing factor” to his mental condition, “the ALJ applied the wrong legal standard and evaluated plaintiff’s case as if it were a new claim for disability benefits.”Id.at 1019. The court further held that the Commissioner’s determination that the claimant was not disabled, as of January 1, 1997, “is supported by absolutely no evidence.” Id.at 1020 (emphasis in original). Thus, the court concluded that since “there is no evidence in the record to rebut the presumption of [the claimant’s] continuing disability and absolutely no evidence to support the Commissioner’s termination of [the claimant’s] benefits,” reversal and an order to reinstate the claimant’s disability benefits as of January 1, 1991, was warranted.Id.

The issue presented in Clark v. Apfel, 98 F. Supp.2d 1182 (D. Or. 2000) was whether the court should remand the case for further development or an award of benefits given the Commissioner’s concession that the ALJ failed to follow an internal memorandum from the Social Security Administration regarding drug and alcohol disorder. Id.at 1185. Given the ALJ’s finding that it was impossible to separate the effects of the claimant’s long term polysubstance dependence and abuse from his other possible mental disorders, the court held that the ALJ should have found, in accordance with an Emergency Teletype, that the addictions were not material to his previous finding of disability. Id. The court remanded for an award of benefits. Id. at 1185-86.

In Bousquet v. Apfel, 118 F. Supp.2d 1049 (C.D. Cal. 2000), the ALJ found that the claimant suffered from an amphetamine-induced psychotic disorder which was a “contributing factor material to the determination of disability.” Id. at 1051-52. The claimant subsequently reapplied for disability insurance benefits, and the Commissioner thereafter awarded benefits due to “anxiety, auditory hallucinations, paranoia, poor concentration and sleep disturbance” as of July 26, 1997, the first day following the date of the ALJ’s prior unfavorable decision. Id. at 1052. The court held that the ALJ failed to provide legally sufficient reasons for rejecting the opinion of the claimant’s treating physician that his disability was caused by schizophrenia, and improperly credited the non-examining medical expert’s opinion that the claimant’s impairments were due to an amphetamine-induced psychotic disorder. Id. at 1059. As it was not disputed that the claimant’s impairments were disabling and the only was “whether plaintiff’s impairments would have persisted if he stopped using drugs,” and given the fact that there was no evidence in the record that would justify rejecting the diagnosis of schizophrenia, the court determined that there were no outstanding issues to be resolved and remanded for an award of benefits.Id.

A California district court explained that pertinent records clearly established that the claimant was diagnosed with several mental conditions, “including post-traumatic stress disorder, personality disorder, and organic mood disorder,” and that these conditions were not necessarily the result of the claimant’s alcohol dependency. Hoffman v. Halter, 140 F. Supp.2d 1056, 1061 (C.D. Cal. 2001). Thus, the court held that:

To ignore and, in essence, implicitly reject evidence of plaintiff’s mental limitations is legal error, Smolen v. Chater, 80 F.3d 1273, 1286 (9thCir. 1996),and, further,renders the Commissioner’s decision to terminate plaintiff’s disability benefits unsupported by substantial evidence.

Id. at 1061-62.

In Hoffman v. Halter, 140 F. Supp.2d 1056 (C.D. Cal. 2001), the court held that the ALJ’s determination that the claimant would not be disabled if he stopped using alcohol was not supported by substantial evidence.Id. at 1060. Further, in making this determination, the ALJ failed to apply the proper legal standard and specifically failed to address plaintiff’s mental or psychiatric limitations. Id.

Tenth Circuit

The Tenth Circuit held in Grogan v. Barnhart, 399 F.3d 1257, 1266 (10th Cir. 2005) that the ALJ failed to follow the prescribed method for considering whether the claimant’s drug use could be considered a contributing factor to his disability in finding that the claimants ability to function prior to his date last insured was due to his illegal drug use. Id.at 1266. The court explained that “[t]o dismiss an application on the basis that Grogan’s drug addiction was a contributing factor material to the determination his disability, the ALJ had to find that, if Grogan had stopped using drugs or alcohol, he would not have been disabled.”Id., citing 20 C.F.R. § 416.935. However, the claimant’s testimony indicated that he remained mentally ill even after he reduced the number of street drugs he was taking around the relevant time period and that his depression had always been separate from the effects of drugs or alcohol. Id.

In McGoffin v. Barnhart, 288 F.3d 1248 (10th Cir. 2002), the ALJ found that the claimant’s mental impairments met a listed impairment, but found that the claimant was able to voluntarily control her substance abuse and thus, it was a “contributing factor material to her disability determination.” Id.at 1251. The Tenth Circuit held that the ALJ erred in rejecting the assessment of the claimant’s treating physician, in part, because it distinguished between the claimant’s mental illness and her substance abuse while the prior medical reports rarely did so, as this fact did not preclude the treating physician from making this distinction. Id.at 1252-53.

The court cited to the SSA teletype which stated that “‘[w]hen it is not possible to separate the mental restrictions and limitations imposed by [drug and alcohol abuse] and the various other mental disorders shown by the evidence, a finding of ‘not material’ would be appropriate,” noting that “the agency directed that if the effects of a claimant’s mental illness could not be separated from the effects of substance abuse, the abuse would be found notto be a contributing factor material to the disability determination.” Id.at 1253.

The Tenth Circuit held in Drapeau v. Massanari, 255 F.3d 1211 (10thCir. 2001), that the ALJ failed (1) to ascertain whether the claimant was disabled prior to finding that alcoholism was a contributing factor material thereto; and (2) to consider whether the claimant’s alcohol abuse was a “contributing factor” to either her post-poliomyelitis or her dysphagia. Id. at 1214-15. Consequently, the Tenth Circuit concluded that there was no evidence of record to support the ALJ’s finding that the claimant’s alcohol abuse was a “material factor” contributing to her disabilities. Id.at 1215.

In Johnson-Winborn, the court stated that it was unclear whether the ALJ assessed evidence of the claimant’s addiction to prescription drugs since he did not discuss whether he found it to be material. Johnson-Winborn v. Apfel, 106 F. Supp.2d 1144, 1147 (D. Kan. 2000). However, Congress passed legislation which eliminated alcoholism or drug addiction as a basis for obtaining Social Security benefits. This legislation provides that “‘[a]n individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner’s determination that the individual is disabled,’” explaining that drug addiction is material if the individual would not be found disabled if the drug use were to cease. Id.,quoting Pub.L. No. 104-121 § 105(a)(1) and citing 20 C.F.R. §§ 404.1535, 416.935.

In Salazar v. Barnhart, 344 F. Supp.2d 723 (D.N.M. 2004), the court held that there was substantial evidence in the record to support the ALJ’s findings that the claimant’s polysubstance abuse was a factor material in the determination of her disability and/or that she would not be disabled but for the chronic polysubstance abuse. Id. at 735. The court noted that the medical record “is replete with references that alcohol and drug abuse were ‘factors material’ in Salazar’s self destructive behavior, suicide attempts and in her inability to hold a job” and “[h]er health care providers and/or evaluators observed and noted a connection between her destructive behavior and substance abuse.”Id. The court further found that the medical evidence provided additional support for the ALJ’s determination that drug addiction and alcohol were contributing factors material to his determination of nondisability, stating:

a key factor in determining whether drug addiction and alcoholism are contributing factors material to the determination of disability is whether Salazar would have been disabled if she stopped using drugs or alcohol. 20 C.F.R. § 416.935(b)(1). Here, the ALJ observed that when Salazar abstained from alcohol or drug abuse and/or followed treatment plans, she improved. She was more hopeful, less depressed, and her suicidal ideation evaporated. If she stayed off alcohol, she did pretty well. Thus, when Salazar abstained from alcohol and drugs and was under treatment, her coping abilities and mental outlook improved.

Id. at 736.

Eleventh Circuit

In Doughty, the claimant was denied benefits pursuant to the Contract with America Advancement Act of 1996, Pub. L. No. 104-121, 105(a)(1), (b)(1), 110 Stat. 847, 852, 853 (codified as amended at 42 U.S.C. § 423(d)(2)(C) (1997)), based on a finding that his alcoholism was a contributing factor material to the determination that he was disabled. Doughty v. Apfel, 245 F.3d 1274, 1275 (11th Cir. 2001). The Eleventh Circuit held, as a matter of first impression, that the claimant bears the burden of proving that his alcoholism or drug addiction is not a contributing factor material to his or her disability determination. Id.at 1276. In so holding, the court agreed with the Fifth Circuit’s reasoning inBrown v. Apfel, 192 F.3d 492 (5th Cir. 1999), which held that the claimant, and not the Commissioner, bears that burden. Id. at 1281.

The court also rejected the claimant’s assertion that a SSA emergency teletype required the ALJ to call a medical or psychological consultant or disability examiner to testify regarding the materiality issue, finding that the teletype does not impose a “new requirement upon the ALJ to seek a consultant’s opinion when making a materiality determination.” Id., citing Emergency Teletype, Office of Disability, Social Security Administration, “Questions and Answers Concerning DAA from July 2, 1996 Teleconference — Medical Adjudicators —ACTION,” August 30, 1996. The regulations only require a consultative examination “when necessary information is not in the record and cannot be obtained from the claimant’s treating medical sources or other medical sources.” Id., citing 20 C.F.R. § 404.1519a(b). As sufficient evidence supported finding that the claimant’s alcoholism was a contributing factor material to the disability determination, the Eleventh Circuit affirmed. Id.

A Florida district court noted that the Commissioner’s instructions regarding handling the “materiality” determination of drug and alcohol addiction state that the “[m]ost useful evidence that might be obtained in such cases is that relating to a period when the individual was not using drugs/alcohol.”Davis v. Apfel, 93 F. Supp.2d 1313, 1318 (M.D. Fla. 2000). The court held that since the medical evidence showed periods of psychiatric stability when the claimant was forced to abstain from drugs and alcohol, the ALJ’s finding that the claimant’s addiction was a contributing factor material to the determination of disability was supported by substantial evidence. Id.

D.C. Circuit

Based on the most recent record, the claimant did not meet the required level of severity of Listing 12.02 in order to qualify for SSI benefits due to an organic mental disorder stemming from alcohol and drug addiction. Parham v. Chater, 964 F. Supp. 432, 436 (D.D.C. 1997).

Borderline age

By Legal issues

Effect of Borderline Age on the Application of the Medical-Vocational Guidelines (Grids)

The Social Security disability regulations provide that the Commissioner will not apply the age categories mechanically in a “borderline situation.” 20 C.F.R. § 404.1563(a). The Commissioner considers a borderline situation to exist “when there would be a shift in results caused by the passage of a few days or months.” Social Security Ruling 82-46c. The Social Security disability court decisions appear to refuse to permit the mechanical application of the age rules where the disability claimant is less than a few months shy of the next age category.

Regulations

20 C.F.R. §§ 404.1563(a), 416.963(a)

The regulations generally provide that age shall be considered a factor in determining whether a claimant is disabled. However, the regulations specifically provide that the age categories will not be applied mechanically in a borderline situation. The regulations were amended in April 6, 2000 to clarify that if a person’s age category changes during the period for which SSA is adjudicating a disability claim, SSA will use the age category that is applicable to the person during the period for which SSA is deciding if the person is disabled. See 65 Fed. Reg. 17994, 17995(April 6, 2000). SSA further explained that in borderline age situations, SSA will not apply the age categories mechanically, and that a “borderline” situation means that the individual is “within a few days to a few months” of reaching a higher age category.

Tip

If you are close to a critical age, such as 50, 55 or 60, examine if the Medical-Vocational Guidelines dictate a finding of disability once you reach the next age category. If so, have your attorney argue at the hearing that the ALJ should consider you disabled six months prior to this key birthday.

Rulings

Social Security Ruling 83-10

Social Security Ruling 83-10 provides that older age is an increasingly adverse vocational factor for persons with severe impairments. The chronological ages 45, 50, 55 and 60 may be critical to a decision. The ruling notes that the regulations also provide that the age categories shall not be applied mechanically in borderline situations. For example, a rule for an individual of advanced age (55 or older) could be found applicable, in some circumstances, to an individual whose chronological age is 54 years and 11 months (closely approaching advanced age). No fixed guidelines as to when a borderline situation exists are provided since such guidelines would reflect a mechanical approach.

Acquiescence Ruling 88-1 (11)

AR 88-1(11) was issued in response to the Patterson v. Bowen, 799 F.2d 1455, 1458 (11th Cir. 1986), decision in the Eleventh Circuit (discussed below). In cases where the claimant resides in Florida, Georgia or Alabama at the time of the determination or decision at any level of administrative review (i.e., initial, reconsideration, administrative law judge hearing or Appeals Council) and (1) the issue of disability is resolved at the last step of the sequential evaluation process; (2) the Medical-Vocational Guidelines would otherwise direct a decision of “not disabled”; and (3) the claimant offers substantial credible evidence of his or her physical or mental impairments as proof that the ability to adapt to other work is less than the level established under the Medical-Vocational Guidelines for individuals of the particular age, a specific finding must be made as to the claimant’s ability to adapt to a new work environment.

Case Law

First Circuit

In Barrett v. Apfel, 40 F. Supp.2d 31 (D. Mass. 1999), the court held that given that the claimant was more than one year away from his fifty-fifth birthday when the ALJ heard his case, and more than nine months away when the decision was rendered, the ALJ did not err in failing to consider the claimant to be of “borderline age.” Id.at 38. In so holding, the court noted that the claimant had turned age 55 before the Appeals Council denied review, “federal regulations make clear that all requirements for entitlement must be met before the administrative law judge’s decision.” Id.,citing 20 C.F.R. § 404.620. The court also recognized that an ALJ may not apply the Grids “‘mechanically in a borderline situation.’” Id., quoting 20 C.F.R. § 404.1563(a). However, as the term “borderline” is not defined either by statute or regulation, the court then surveyed cases from around the country discussing “borderline age.” Id.

Second Circuit

A claimant who turns 50 years of age during the course of litigation does not require a determination that she is disabled under the Grids where the decision under review concerned her request for benefits during a period before she turned 50. Toro v. Chater, 937 F. Supp. 1083, 1094 (S.D.N.Y. 1996).

A claimant who was three months shy of his fiftieth birthday on the date he was last insured and who could not perform sedentary work, should have been classified as approaching advanced age for purposes of applying the Grids.Davis v. Shalala, 883 F. Supp. 828 (E.D.N.Y. 1995).

Third Circuit

The plain meaning of 20 C.F.R. § 404.1563(a) is that where the claimant’s age falls within a few months of the starting date of an age category the Grids should not be employed mechanically. Kane v. Heckler, 776 F.2d 1130, 1133 (3d Cir. 1985).

Fourth Circuit

A Maryland district court noted that Social Security regulations specifically state that the “age categories should not be applied mechanically in a borderline situation.” France v. Apfel, 87 F. Supp.2d 484, 491 (D. Md. 2000), citing 20 C.F.R. § 404.1563(a). In France, the court surveyed cases discussing this regulation, and held that the ALJ mechanically applied the age criteria of the Grids and that this application was not based on substantial evidence. Id.at 491-92, citing Ford v. Heckler, 572 F. Supp. 992, 994 (E.D.N.C. 1983). Thus, the court remanded this case with instructions to place the claimant in the regulatory category of “advanced age.” Id.

In a case where the ALJ rendered his decision 22 days prior to the claimant’s 55th birthday, a Maryland district court held that the ALJ erred in mechanically applying the age categories in a borderline situation. Washington v. Apfel, 40 F. Supp.2d 326, 330 (D. Md. 1999). The court noted that the regulations provide that an application remains in effect until the ALJ issues the hearing decision; and if the claimant meets all the requirements for entitlement while the application is in effect, benefits will be paid from the first month that the requirements are met. Id., citing 20 C.F.R. § 404.620(a) and (a)(1). The regulations also provide that when considering age as a vocational factor, the agency will not apply the age categories mechanically in a borderline situation. Id., citing 20 C.F.R. § 404.1563(a). In Washington, the court held that the ALJ failed to even recognize the close proximity of his decision date to the claimant’s 55th birthday, focusing only on the claimant’s “alleged” onset date, and reversed and remanded for an award of benefits. Id.at 330-31.

The Commissioner should not have mechanically applied age categories in a borderline situation where the claimant, who was illiterate, was 15 days shy of 45 when the Appeals Council rejected his disability claim. Ford v. Heckler, 572 F. Supp. 992, 994 (E.D.N.C. 1983).

Fifth Circuit

Even if the claimant was in the 50-54 age category, a person with his education, work experience and functional capacity would still not be considered disabled. Harrell v. Bowen, 862 F.2d 471, 479 (5th Cir. 1988).

The Commissioner’s use of the age classifications on a 49-year-old claimant was upheld despite a medical report suggesting that the claimant had prematurely aged. See Underwood v. Bowen, 828 F.2d 1081, 1083 (5th Cir. 1987).

Where claimants will remain insured while attaining a vocationally significant age after the date of the ALJ’s decision, the ALJ should consider whether such circumstances should be considered a borderline situation. Walhood v. Secretary of Health and Human Servs., 875 F. Supp. 1278, 1284 (E.D. Tex. 1995).

Sixth Circuit

In Bowie v. Comm’r of Soc. Sec., 539 F.3d 395 (6th Cir. 2008), the Sixth Circuit considered a single procedural issue involving a claimant who was 49 years old, but less than two months away from her 50th birthday at the time of the ALJ’s decision. Id.at 396. On her appeal, the claimant argued that she was borderline between the “younger individual” age group and the “closely approaching advanced age” group, which required the ALJ to apply 20 C.F.R. § 404.1563(b) to determine her age category. Id. at 398. By not explicitly indicating that he did consider her borderline status, the claimant alleged that the ALJ erred. Id. at 398-399. The court found, however, that the ALJ’s decision was supported by substantial evidence and “not the product of procedural error,” as “§ 1563(b) does not impose on ALJs a per se procedural requirement to address borderline age categorization in every borderline case.” Id.at 399. The regulation merely promises claimants that the Administration will “consider whether to use the older age category after evaluating the overall impact of all the factors in your case.” 20 C.F.R. § 404.1563(b) (emphasis added). The court found further support in the HALLEX in an Appeals Council interpretation of 20 C.F.R. § 404.1563 that suggests that ALJs “consider whether the claimant has presented ‘additional vocational adversities’ in determining whether to veer from a claimant’s chronological age in a borderline situation.” Id., citing HALLEX II-5-3-2. The council further advised:

Absent a showing of additional adversity(ies) justifying use of the higher age category, the adjudicator will use the claimant’s chronological age—even when the time period is only a few days. The adjudicator need not explain his or her use of the claimant’s chronological age.

Id.at 400 (emphasis added). In this case, the court found no evidence that the claimant suffered from any “additional vocational adversities” that would place her in the higher age category, and, therefore, the ultimate determination was supported by substantial evidence. Id.

Finding that the ALJ strictly and mechanically applied the age categories to the claimant and failed to address in any fashion whether a borderline age situation was present, the court held that the ALJ should have considered whether Pickard’s proximity to the next higher age category (four months shy of her 55th birthday) placed her in a borderline situation and, based on whatever evidence was available, which category best described her. Pickard v. Comm’r,224 F. Supp.2d 1161, 1168 (W.D. Tenn. 2002). The court reviewed the case law regarding “borderline age” and determined that courts have generally concluded that:

the borderline range falls somewhere around six months from the older age category. Compare Cox v. Apfel, No. 98-7039, 1998 WL 864118, at *4 (10th Cir. Dec.14, 1998) (because plaintiff was within six months of next age category at time decision issued, ALJ erred by not addressing whether plaintiff was of borderline age); Daniels v. Apfel, 154 F.3d 1129, 1132-33 (10th Cir. 1998) (65 days borderline); Kane v. Heckler, 776 F.2d 1130, 1132-33 (3d Cir. 1985) (48 days required consideration of whether claimant was in borderline situation); Smith v. Barnhart, No. 00 C 2643, 2002 WL 126107, at 24 (N.D. Ill. Jan. 31, 2002) (noting that the cases tend to treat claimants who are within six months of next age category as borderline); Freundt v. Massanari, No. 00 C 4456, 2001 WL 1356146, at *17-20 (N.D. Ill. Nov. 2, 2001) (six months and 12 days from next age category should have triggered inquiry by ALJ concerning borderline situation); Graham v. Massanari, No. 00 C 4669, 2001 WL 527326, at *8 (N.D. Ill. May 9, 2001) (four and one-half months borderline); France v. Apfel, 87 F. Supp.2d 484, 491-92 (D. Md. 2000) (five months borderline); Russell [v. Commissioner of Soc. Sec., 20 F. Supp.2d 1133, 1134-36 (W.D. Mich. 1998)] (92 days borderline, stating that Appeals Council Interpretation II-5-302 (effective Mar. 16, 1979) “appears to establish that the Appeals Council believes there is a six month window in which a claimant’s situation is ‘borderline’”); Tousignant v. Apfel, No. 97 C 4150, 1998 WL 142415, at *5 (N.D. Ill. Mar. 26, 1998) (finding that 10 months would seem to be borderline); Leyba v. Chater, 983 F.Supp. 1048, 1051 (D.N.M. 1996) (three and one-half months borderline); Davis v. Shalala, 883 F.Supp. 828, 838-39 (E.D.N.Y. 1995) (three months borderline); Hill v. Sullivan, 769 F.Supp. 467, 470-71 (W.D.N.Y. 1991) (three months two days borderline); Chester v. Heckler, 610 F.Supp. 533, 535 (S.D. Fla. 1985) (one month triggered inquiry into borderline status); Roush v. Heckler, 632 F.Supp. 710, 711-12 (S.D. Ohio 1984) (six months borderline) with Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996) (seven months not borderline); Fleenor v. Secretary of Health & Human Servs., No. 92-5082, 1992 WL 379438, at *2-3 (6th Cir. Dec. 15, 1992) (court would not disturb ALJ’s finding as to the appropriate age category of claimant, even though he was five months shy of next category); Wright v. Sullivan, No. 91-5992, 1992 WL 75218, at *6 (6th Cir. Apr. 15, 1992) (almost two years not borderline); Barrett v. Apfel, 40 F. Supp.2d 31, 39-40 (D. Mass. 1999) (nine months not borderline); Green v. Chater, No. C-96-2299 MHP, 1997 WL 797807, at *3 (N.D. Cal. Dec. 2, 1997) (three years not borderline); Woods v. Chater, No. C 95-1748 SI, 1996 WL 570490, *4-5 (N.D. Cal. Sept. 27, 1996) (four months not borderline); Peters v. Bowen, No. CIV.A. 85-4431, 1986 WL 11398, at *5 (E.D. La. Oct. 3, 1986) (two years not borderline).

Id. at 1168. The court held that the ALJ’s failure to address the borderline issue and to explain his choice of age category impeded the court’s ability to review his application of the regulations and may have violated 20 C.F.R. § 404.953, which requires the ALJ to include findings of fact and reasons for his conclusions in his decision. Id.at 1169. The court also concluded that the claimant carried her burden of showing that remand was appropriate for the purpose of allowing the ALJ to consider the new evidence presented by her. Id.

Where claimant’s age placed him in a borderline category and the ALJ mechanically applied the Grids, the court remanded, stating that “[t]he regulations provide that in evaluating under the Grids, the SSA ‘will not apply [the] age categories mechanically in a borderline situation.’” Russell v. Commissioner of Social Sec., 20 F. Supp.2d 1133, 1134-35 (W.D. Mich. 1998),quoting 20 C.F.R. § 404.1563(a).The court noted that theclaimant “was 92 days short of his 50th birthday” on the date of the ALJ’s decision and “the claimant’s age as of the time of the decision governs.” Id. at 1134.The court cited Appeals Council Interpretation II-5-302 (effective Mar. 16, 1979), stating that “[g]enerally, establishing an onset date up to six months prior to attainment of the specified age . . . .” Id. at 1135. The court further cited a second Appeals Council Interpretation, II-5-302(A) (effective Nov. 2, 1993), which provides:

To identify borderline age situations when making disability determinations, adjudicators will apply a two-part test:

(1) Determine whether the claimant’s age is within a few days or a few months of a higher age category.

(2) If so, determine whether using the higher age category would result in a decision of “disabled” instead of “not disabled.”

If the answer to one or both is “no,” a borderline age situation either does not exist or would not affect the outcome. The adjudicator will then use the claimant’s chronological age.

If the answer to both is “yes,” a borderline age situation exists and the adjudicator must decide whether it is more appropriate to use the higher age or the claimant’s chronological age.(Use of the higher age category is not automatic.)

Id.The court in Russell considered these two interpretations, as well as the decisions of other courts in finding that the claimant presented a borderline situation. Id. When a borderline situation is present, “a factual determination must be made as to the appropriate age category,” and that “[t]o do otherwise is to mechanically apply the age categories, an action prohibited by 20 C.F.R. § 404.1563(a).” Id. at 1134-35. The ALJ is required to explain his or her use of a claimant’s chronological age when there is a “showing of additional adversities,” as was demonstrated in Russell by the number of the claimant’s impairments, and the ALJ’s failure to do so “both impedes judicial review of the ALJ’s application of 20 C.F.R. § 404.953(a) and appears to violate 20 C.F.R. § 404.953.” Id. at 1136.“Accordingly, the ALJ was required to make a finding which included consideration of more than just the plaintiff’s chronological age.” Id.

Seventh Circuit

Although a Wisconsin district court noted that a partial judicial award could be entered where the plaintiff’s passage into a new age category rendered her disabled under the Grid, the cases made it clear that the record must be fully developed. Wirth v. Barnhart, 318 F. Supp.2d 726, 733 (E.D. Wis. 2004).

In Young v. Barnhart, 287 F. Supp.2d 905 (N.D. Ill. 2003), the court held that because the claimant was four and one-half months shy of his fifty-fifth birthday at the time of his hearing, the ALJ erred in not performing a borderline analysis to determine whether he should be classified as “advanced age” rather than “approaching advanced age,” noting that if the ALJ had applied the next age category, the claimant would have been found to be disabled under Rule 202.04 of the Medical-Vocational Guidelines. Id. at 912.

In affirming the Commissioner’s decision, the court held that it did not have jurisdiction to reverse the ALJ’s decision based on the fact that the claimant turned 55 before the complaint was filed, as she was 53 years of age at the time of the ALJ’s decision and the court has only the power to review the ALJ’s decision under 42 U.S.C. § 405(g). Latkowski v. Barnhart, 267 F. Supp.2d 891, 906 (N.D. Ill.2003).

The court refused to rule in favor of a 54-year-old claimant who argued that she was “of advanced age” due to her failure to present any evidence that she was “somehow atypical of a 54 year old.” Sims v. Bowen, 666 F. Supp. 1141, 1147 (N.D. Ill.1987).

Ninth Circuit

Although the court agreed that “age categories will not be applied mechanically in a borderline situation,” the court found that the claimant’s case was not a borderline case where the claimant was closer to age 59 than age 60. Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988), citing Calvin v. Heckler, 782 F.2d 802, 805 (9th Cir. 1986) andGonzales v. Secretary of Health & Human Servs., 784 F.2d 1417, 1420 (9th Cir. 1986) (noting that it is incumbent upon the Commissioner to decrease his reliance upon the Grids in cases where the individual claimant’s circumstances approach the upper limits of the Grid’s guidelines).

Remand was required in light of the claimant’s age where the claimant was two months shy of his 45th birthday when the ALJ decided the case and 15 days shy when the Appeals Council ruled. Hilliard v. Schweiker, 563 F. Supp. 99, 101-02 (D. Mont.1983).

Tenth Circuit

In Daniels v. Apfel, 154 F.3d 1129 (10th Cir. 1998), the primary question was whether the Commissioner adequately considered the fact that the claimant was only a little more than two months short of being in an age category in which he would have been presumptively disabled, when the Commissioner found him not disabled based on the Medical-Vocational Guidelines.Id.at 1133. The court held that the Commissioner failed to consider the fact that the claimant fell within a “borderline” age situation and, therefore, improperly applied the Grids “mechanically,” requiring remand for further consideration. Id.

Pursuant to Social Security Ruling 82-46c, a “borderline situation” exists “when there would be a shift in results caused by the passage of a few days or months.” Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996) (finding that a claimant who was seven months short of the next age category at the time her insured status expired did not fall within a borderline situation preventing application of the Grids).

The Tenth Circuit refused to apply the Eleventh Circuit rule that prohibits strict reliance on the age criteria of the Grids in cases where the claimant proffers substantial, credible evidence that his or her ability to adapt to a new work environment is less than the level established under the Grids for persons of the claimant’s age. Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996), citing Patterson v. Bowen, 799 F.2d 1455, 1458 (11thCir. 1986) and Reeves v. Heckler, 734 F.2d 519, 526 (11th Cir. 1984). In Lambert, the court expressed “serious doubts about the correctness of that rule,” but held that even if it were to apply the rule, the only factors presented by the claimant did not relate to her ability to adapt to other work. Id.at 470-71.

Eleventh Circuit

The Commissioner cannot use the Grids concerning age to establish conclusively a claimant’s ability to adapt to a new work environment. Patterson v. Bowen, 799 F.2d 1455, 1458 (11th Cir. 1986). “In Reeves, we held that in cases where the ALJ has applied the age Grids in a mechanical fashion, the claimant should be given an opportunity to make a proffer of evidence on his ability to adapt.” Id., citing Reeves v. Heckler, 734 F.2d 519, 526 (11th Cir. 1984). If the claimant offers substantial evidence that an ALJ could find credible and tending to show that the claimant’s ability to adapt to a new work environment is less than the level established under the Grids for persons his or her age, the district court is required to remand the case to the Commissioner for reconsideration of the age/ability to adapt issue. Id. If, on the other hand, the claimant does not make such a proffer, the ALJ’s mechanistic use of the age Grids would be harmless error and there is no need to remand to the Commissioner. Id.

The court held in Crook that a claimant who was 54½ years of age at the time the ALJ’s decision was issued should have been considered a person of “advanced age” under the Medical-Vocational Guidelines, warranting a finding of disability in accordance with Rule 202.06. Crook v. Barnhart, 244 F. Supp.2d 1281, 1284 (N.D. Ala. 2003). In so holding, the court relied on the Sixth Circuit case of Varley v. Secretary of Health & Human Servs., 820 F.2d 777, 780 (6th Cir. 1987) which held that “the claimant’s age as of the time of the decision governs.” Id. at 1283. The court also cited 20 C.F.R. § 404.1563 which provides that SSA “will not apply these (chronological) age categories mechanically in a borderline situation,” as well as the Appeals Council Interpretation II-5-302 (effective Mar. 16, 1979) stating that “[g]enerally, establishing an onset date up to six months prior to attainment of the specified age would be reasonable.”Id. Additionally, the court held that the medical evidence indicated that the claimant could not perform light work as found by the ALJ, and was limited to “no more than sedentary work.” Id.at 1285. Thus, a finding of disability was also warranted in accordance with Rules 201.06 and 201.14 of the Medical-Vocational Guidelines.Id.

The ALJ erred in mechanically applying the Grids to a claimant whose 50th birthday was 30 days after the expiration of his insured status. Chester v. Heckler, 610 F. Supp. 533, 534-35 (S.D. Fla.1985).

Chemical sensitivity and environmental illness

By Legal issues

Chemical Sensitivity and Environmental Illness in Social Security Disability

Modern medicine appears to be only now recognizing that some Social Security disability claimants may be suffering from illnesses related to chemical sensitivities. The courts have not welcomed the new diagnosis and appear to be applying a strict standard in terms of objective proof of such conditions. The following listing of Social Security disability decisions includes the latest cases on chemical sensitivity diagnoses and a survey of some of the older cases discussing the need for a vocational expert in the face of environmental limitations. The cases were combined into one topic to suggest that you approach your case using both perspectives.

Tip

Attempt to obtain as much objective evidence as possible regarding the severity of your environmental limitations. Your disability attorney should argue that your limitations constitute a significant nonexertional impairment precluding mechanical application of the Grids and requiring vocational expert testimony to determine the impact of the environmental limitation or chemical sensitivity on your ability to perform other work.

Regulations

20 C.F.R. §§ 404.1545, 416.945

Some medically determinable impairment(s), such as impairments which impose environmental restrictions, may cause limitations and restrictions which affect other work-related abilities.

20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids)

Environmental restrictions ordinarily would not significantly affect the range of work existing in the national economy for individuals with the physical capability for heavy work (or very heavy work).

Rulings

Social Security Ruling 96-9p

SSR 96-9p provides that an “environmental restriction” is an impairment-caused need to avoid an environmental condition in a workplace. According to SSR 96-9p, few occupations in the unskilled sedentary occupational base require work in environments with extreme cold, extreme heat, wetness, humidity, vibration, or unusual hazards. Since all work environments entail some level of noise, restrictions on the ability to work in a noisy workplace must be evaluated on an individual basis. The unskilled sedentary occupational base may or may not be significantly eroded depending on the facts in the case record. In such cases, it may be especially useful to consult a vocational resource. Restrictions to avoid exposure to odors or dust must also be evaluated on an individual basis. The RFC assessment must specify which environments are restricted and state the extent of the restriction, e.g., whether only excessive or even small amounts of dust must be avoided.

Social Security Ruling 85-15

SSR 85-15 provides that although § 204.00 of the Grids provides an example of one type of nonexertional impairment — environmental restrictions — and states that environmental restrictions ordinarily would not significantly affect the range of work existing in the national economy for individuals with the physical capability for heavy work (or very heavy work), numerous environmental restrictions might lead to a different conclusion, as might one or more severe losses of nonexertional functional capacities. The medical and vocational factors of the individual case determine whether exclusion of particular occupations or kinds of work so reduces the person’s vocational opportunity that a work adjustment could not be made.

Where a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc.

Where an individual can tolerate very little noise, dust, etc., the impact on the ability to work would be considerable because very few job environments are entirely free of irritants, pollutants, and other potentially damaging conditions.

Where the environmental restriction falls between very little and excessive, resolution of the issue will generally require consultation of occupational reference materials or the services of a VE.

Other Sources

As explained by the Social Security Administration, and as set forth in POMS DI § 24515.065, “clinical ecology” or “environmental medicine” is an approach to medicine that ascribes a wide range of symptoms to exposure to numerous common substances in the environment. Recent publications by clinical ecologists have suggested that chemicals cause toxic damage to the immune system. However, there is no indication that individuals with a clinical ecology diagnosis of chemical sensitivity have immune deficiency, immune complex disease, autoimmunity, or abnormal functioning of their immune systems.

The principal clinical ecology procedure in diagnosing sensitivity to a chemical or food is the provocation-neutralization technique, in which the patient records symptoms occurring during a 10-minute period immediately following the administration of a test dose of a chemical, food extract, or allergen applied either as a sublingual drop or by subcutaneous or intracutaneous injection. Symptoms are “neutralized” by injecting or applying sublingually a lower dose of the same test substance. The results are based solely on the subjective report of symptoms by the patient.

The POMS further provides that in claims alleging disability due to environmental illness, all of the claimant’s symptoms, signs, and laboratory findings must be considered to determine if there is a medically determinable impairment and the impact of an impairment on the claimant’s ability to work. This evaluation should be made on an individual case-by-case basis to determine if the impairment prevents substantial gainful activity. Id.

Case Law

First Circuit

In assessing the disability claim of a person suffering from multiple chemical sensitivity disorder (“MCS”), a Massachusetts district court remanded the case, as the Commissioner conceded that the ALJ’s analysis was flawed in that he relied on an unsupported, non-examining physician’s assessment. Creamer v. Callahan, 981 F. Supp. 703, 704(D. Mass.1997).While the ALJ “determined that the Plaintiff’s MCS could not form the basis for SSDI eligibility,” the Commissioner stipulated the SSA “recognizes [MCS] as a medically determinable impairment.” Id. at 704-05.

Second Circuit

In Schaal v. Callahan, 993 F. Supp. 85 (D. Conn. 1997), the court found that substantial evidence was not sufficient to support the ALJ’s determination that the claimant’s nonexertional limitations would not significantly compromise her ability to do the full range of sedentary work. Id. at 92. The court stated that despite sufficient evidence of the claimant’s environmental limitations, the ALJ opined that the claimant’s range of work was not significantly compromised, citing no evidence to support this opinion. Since the record supported a finding that the claimant’s ability to perform a full range of sedentary work was in fact significantly diminished, the court remanded the case, ordering the ALJ to obtain testimony from a vocational expert or other similar evidence showing that there are jobs in the national economy that the claimant could do notwithstanding her nonexertional limitations. Id., citing 20 C.F.R. § 416.966(a)(b).

A New York district court noted that despite evidence of the claimant’s environmental limitations (which are nonexertional limitations) as well as borderline intellectual capacity, the ALJ determined that these limitations did not significantly affect her employment opportunities and concluded that the claimant was not disabled “within the framework” of the Medical-Vocational Guidelines. Gallivan v. Apfel, 88 F. Supp.2d 92, 99 (W.D.N.Y. 2000). However, given the ALJ’s findings that these limitations “interfere with her ability to work,” the court found that the record did not support the ALJ’s opinion that such limitations would not significantly compromise her ability to perform a full range of light or sedentary work. Further, given these limitations, the ALJ should have obtained testimony from a VE or received other evidence to determine whether the claimant could perform other jobs which exist in the national economy. Id.

The ALJ erred in mechanically applying the Grids even though he concluded that the claimant had the residual functional capacity to perform work-related functions except for work involving environmental conditions of dust and fumes, and prolonged walking, standing, lifting and carrying. Graham v. Heckler, 580 F. Supp. 1238, 1241 (S.D.N.Y. 1984).

Fourth Circuit

The ALJ erred in relying on the Grids, despite the claimant’s need to avoid the inhalation of lint. Roberts v. Schweiker, 667 F.2d 1143, 1145 (4th Cir. 1981).

A West Virginia court found that substantial evidence supported the finding that a claimant who alleged that she became disabled for all forms of substantial gainful employment in July 1988 due to epilepsy, migraine headaches, fibromyalgia, and sensitivity to chemicals, retained sufficient residual functional capacity to perform nonstressful, light work activity during the three-year period prior to the date of her application. Ordewald v. Barnhart 351 F. Supp.2d 499, 500, 502 (W.D. Va. 2005).

In Clemons, the claimant suffered from a variety of symptoms, including easy fatigueability, short term memory loss, numbness and tingling in the extremities, and inability to apply himself on a sustained basis and a specialist eventually determined that he suffered from neurotoxicity due to chronic exposure to formaldehyde and solvents used in the furniture industry, as well as chronic fatigue immune dysfunction syndrome. Clemons v. Barnhart 322 F. Supp.2d 687, 690 (W.D. Va. 2003). An ALJ awarded benefits with an onset date of August 10, 1997, as of the claimant’s 50th birthday, but the claimant appealed, arguing that he was disabled as of March 18, 1992, when he stopped working. Id. at 688-89. In affirming, the court noted that one of the primary difficulties with this case is that the claimant did not seek treatment from the specialist who diagnosed his condition or from any other physician and it was “reasonable for the Law Judge to determine that the absence of intervening medical care might suggest some overall improvement in plaintiff’s condition.” Id.at 691. The court also observed that “it is not unlikely that plaintiff’s chemical sensitivity would have improved following termination of his exposure to toxic chemicals.” Id.

Fifth Circuit

The Fifth Circuit rejected the claimant’s allegations that she suffered from an environmental illness and that the ALJ failed to accord proper weight to her treating physician, since the evidence of record failed to establish the severity of her condition. Greenspan v. Shalala, 38 F.3d 238-39 (5th Cir. 1994). In so finding, however, the court acknowledged that because “ecological illness” is not accepted widely, and no “yes or no” test apparently exists, direct proof of illness and, hence, disability is hard to produce. The court further agreed that proper circumstantial evidence would be enough to prove disability, but disagreed that the claimant had met her burden. Id.at 239-40.

Although the ALJ referred to the opinions of the claimant’s treating physicians regarding the claimant’s tolerance for dust, fumes, gases and extreme fluctuations of temperature or humidity, he made no findings as to their significance vis-a-vis her exertional capacity. Dellolio v. Heckler, 705 F.2d 123, 128 (5th Cir. 1983). Thus, remand was necessary to determine whether the environmental restrictions rose to the level of nonexertional impairments, or foreclosed the claimant’s access to the full range of occupations encompassed within the regulatory definition of “light work.”

The ALJ improperly relied upon the Grids despite evidence that the claimant’s disabling symptoms appeared to be intensified by exposure to dust, fumes, and excessive heat. Thomas v. Schweiker, 666 F.2d 999, 1004 (5th Cir. 1982).

Sixth Circuit

The Medical-Vocational Guidelines should not be applied where a claimant suffers from an impairment that significantly diminishes his capacity to work but does not manifest itself as a limitation on strength, e.g., where a claimant suffers from a heightened sensitivity to environmental contaminants. Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990).

The ALJ’s finding that the claimant’s residual functional capacity for sedentary work was limited to “settings relatively free of atmospheric pollutants and irritants” conflicted with his subsequent conclusion that the claimant’s nonexertional limitations did not significantly limit his capacity for sedentary work. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).

The Sixth Circuit held that there was substantial evidence to support the ALJ’s decision that the claimant retained the residual functional capacity, despite severe impairments of chronic fatigue syndrome, chemical sensitivity syndrome, depression, and somatoform disorder, to perform work in the economy.Buxton v. Halter, 246 F.3d 762, 771 (6th Cir. 2001).

In Culbertson v. Barnhart, 214 F. Supp.2d 788 (N.D. Ohio 2002), a claimant with narcolepsy and chemical sensitivity challenged the ALJ’s decision to discredit her treating physician who was a board certified anesthesiologist. Id.at 796. The court rejected the claimant’s argument, finding that the opinion was not supported by the record and noting that the treating physician was not an allergist or other specialist more applicable to her case. Id. While the court rejected the claimant’s argument as to the treating anesthesiologist, the court still remanded the case due to the ALJ’s failure to articulate his basis for rejecting the treating neurologist’s opinion and the ALJ’s failure to include all the claimant’s alleged impairments in hypothetical questions directed to the VE. Id.

A Tennesseedistrict court found that “where a claimant must only avoid concentrated amounts of environmental irritants, the impact on the broad world of work is minimal.” Holland v. Massanari, 152 F. Supp.2d 929, 938 (W.D. Tenn. 2001), citing SSR 85-15. Because the claimant was restricted only from working around concentrated amounts of environmental irritants, the impact upon her ability to perform a full range of light work was slight and the ALJ was correct in using the Grids as a framework for his determination that she was not disabled. Id.

Seventh Circuit

The ALJ properly considered the claimant’s nonexertional limitations, including his sensitivity to air-conditioned environments, in determining that the claimant could perform other work in the economy. Herron v. Shalala, 19 F.3d 329, 336 (7th Cir. 1994).

The ALJ erred in failing to substantiate his finding that most unskilled, sedentary jobs “would not be ruled out by the claimant’s nonexertional limitations imposed by his respiratory impairment” with any authoritative references or other evidence. Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986). The Seventh Circuit also concluded that a vocational expert’s testimony was necessary and that the ALJ erred “when he in effect summarily took administrative notice that there is a significant number of unskilled, sedentary jobs in the national economy” that the claimant could perform, despite sensitivity to smoke, dust, and perfume. Id.

Eighth Circuit

The ALJ’s determination that the evidence presented by the claimant with respect to her diagnosis of environmental illness was not based on “medically acceptable clinical and laboratory diagnostic techniques” was based on substantial evidence, where the Commissioner’s medical expert testified that “there [was] divided opinion in medicine” about the diagnosis of environmental illness, and that the testing methodology utilized by the claimant’s treating physician (putting drops of various substances under the tongue or injecting them and then recording reactions of the patient that are not visually observable but are reported by the patient to the doctor) lacked scientific validity. Brown v. Shalala, 15 F.3d 97, 99-100 (8th Cir. 1994).

The court rejected the claimant’s argument that the ALJ made insufficient findings with regard to the types of jobs available in “clean environments.” Cronkhite v. Sullivan, 935 F.2d 133, 134 (8th Cir. 1991). In Cronkhite, the court stated that the ALJ properly utilized vocational expert testimony to identify specific jobs available in such environments. The ALJ also properly suggested that the claimant could wear a face mask and gloves while working if desired. Id.

Substantial evidence in the record as a whole supported the conclusion that the claimant’s allergic reactions to common substances (in combination with her other health problems) prevented her from working on a regular basis in the work environments where she was employed in the past. Kouril v. Bowen, 912 F.2d 971, 974 (8th Cir. 1990).

The Eighth Circuit held that the ALJ improperly determined, without the benefit of further testimony such as that of a VE, that the majority of unskilled sedentary jobs in the national economy take place in a pollution-free environment. Asher v. Bowen, 837 F.2d 825, 828 (8th Cir. 1988).

An Iowa district court rejected the claimant’s argument that the ALJ erred in inconsistently determining the claimant’s necessary work environment. Grow v. Bowen, 710 F. Supp. 1275, 1278 (N.D. Iowa 1989). In Grow, the ALJ found that the claimant could do his current part-time work in a dirty work environment on a full-time basis. Alternatively, the ALJ found that restrictions on the claimant’s RFC included the need “to be in a clean environment which entails no extreme temperatures, extreme humidity, or high levels of contaminants.” Id.The court reasoned that the ALJ’s analysis merely indicated a sensitivity to the claimant’s physical ailments in making the RFC determination. Id.

Ninth Circuit

The ALJ erred in relying upon the Grids, where the claimant could not tolerate dust, fumes or heat. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).

In Nelson v. Apfel, 96 F. Supp.2d 1110 (D. Or. 2000), the court held that the ALJ erred in rejecting the opinion of an examining physician who diagnosed the claimant with porphyria which was activated by exposure to certain material at her workplace and that the claimant was disabled due to her condition. Id. at 1114. The court noted that “[p]orphyria is a hereditary condition which relates to a deficiency of enzymes involved in the metabolic pathway of the production of heme, essential to the human body, and resulting in porphyrin accumulation” and that the “abnormal porphyrins cause mostly neurologic and psychiatric symptoms and is triggered by exposure to porphyrogenic substances.”Id.

Tenth Circuit

The ALJ’s finding that the claimant was able to perform her past relevant work and sedentary work was not supported by substantial evidence where the evidence of record clearly demonstrated that the claimant suffered from the impairments of Chronic Fatigue Syndrome and marked chemical sensitivity which were of such severity as to preclude her from doing her past relevant work and from performing full-time sedentary work. Vogt v. Chater, 958 F. Supp. 537, 548 (D. Kan. 1997).

In Martinez v. Apfel, 17 F. Supp.2d 1188 (D. Colo. 1998), the court noted that environmental restrictions must be considered as nonexertional impairments if they are significantly severe to diminish the number of jobs available to the claimant. Id. at 1193. The court concluded that since the ALJ failed to analyze whether the claimant’s environmental restrictions of limited exposure to extreme cold, wetness, or vibration, imposed a significant decrease in the number of jobs available to the claimant, remand was required. Id.

The ALJ improperly considered the claimant’s environmental restrictions resulting from her asthma condition. Stevenson v. Heckler, 588 F. Supp. 980, 984 (D. Utah1984).

Eleventh Circuit

The Eleventh Circuit remanded the matter for further findings as to the extent of the claimant’s environmental limitations and, if necessary, the taking of further evidence as to the existence of other work. Sryock v. Heckler, 764 F.2d 834, 837 (11th Cir. 1985).

In Williams, the court held that the ALJ erred in exclusively using the Medical-Vocational Guidelines and in failing to obtain vocational expert testimony in light of the claimant’s environmental limitations. Williams v. Halter, 135 F. Supp.2d 1225, 1227 (M.D. Fla. 2001). The court specifically held that the ALJ erred in relying on Social Security Ruling 85-15 as this Ruling does not apply when a claimant has both exertional and nonexertional impairments. The court also held that the Commissioner’s more recent reliance on SSR 96-9p was “likewise misplaced,” stating:

[SSR 96-9p] states that ‘few occupations in the unskilled sedentary occupational base require work in environments . . . [involving] unusual hazards,’ such as ‘moving mechanical parts of equipment, tools, or machinery,’ and opines that ‘[e]ven a need to avoid all exposure to these conditions would not, by itself, result in a significant erosion of the occupational base.’ However, like SSR 85-15, SSR 96-9 (sic) overlooks the fact that the Secretary’s own regulation states that approximately 85 percent of the unskilled sedentary jobs existing in the national economy are in the machine trades and benchwork occupational categories. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(a); see also Asher v. Bowen, 837 F.2d 825,828 (8th Cir. 1988) (noting 85% figure in § 201.00(a)); Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986) (same).

Id. Since the court held that the claimant’s nonexertional impairment prevented him from doing unlimited types of sedentary work, the ALJ erred in not obtaining expert vocational evidence. Id.

D.C. Circuit

Where the ALJ found that the claimant’s capacity to perform the full range of light work was reduced by her inability to do work requiring acute hearing and to work around fumes and dust, and because these nonexertional impairments prevented her from performing all the jobs of which she was exertionally capable, the Grids applied only as a framework. Smith v. Bowen, 826 F.2d 1120, 1123 (D.C. Cir. 1987).