Writing standards --- Quality and quantity

This is a handout I prepared to help new writers. It focuses on how to draft a concise, but defensible rationale.

RATIONALE

This is what you insert in the credibility and RFC sections. DO NOT attempt to type all of this information into the data form. There is not enough room and the program could crash at any time causing you to lose that work. Just add it after you make the initial “save”.

1)   Credibility assessment.

a)   make sure you include/haven’t deleted a paragraph explaining our standards for evaluating subjective complaints.

affirmations or partials

This is an example of what I use - -

In evaluating pain or other subjective complaints, a two-prong test must be applied. 20 CFR 404.1529, 20 CFR 416.929, Duncan v. Secretary, 801 F. 2d 847 (6th Cir. 1986), Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994), and Social Security Ruling 96-7p. It must first be determined whether there is evidence of an underlying medical condition which can be shown to be the cause of the complaint. If there is no evidence that the claimant has such an underlying medical condition, the complaints may not be found credible and the evaluation stops at that step. If there is such an underlying medical condition, the evaluation continues to determine whether there is objective medical evidence confirming the severity of the alleged complaints or whether the claimant's condition is so severe that it can reasonably be expected to give rise to the alleged complaints.

The claimant’s complaints meet the first prong of the test. She has medically determinable impairments that could cause such complaints.

b)   What are the claimant’s subjective complaints?

i)   Do the complaints meet the first prong of the pain analysis, which is whether there is evidence of an underlying medical condition which can be shown to be the cause of the complaint? If not you can, insert the following [I have this saved as a file named “1stprong”]. Always be sure to use the first prong to eliminate complaints if you can. For example, a claimant who asserts lots of mental limitations, but has never had mental health treatment nor diagnosis of mental impairments.

The claimant’s complaints of limitations arising from alleged *** impairments cannot be found credible. They do not meet the first prong of the test set forth in the Regulations and Duncan.

ii)   For the complaints that meet the first prong, the second step of the pain analysis pursuant to 20 CFR 404.1529, 20 CFR 416.929 is to consider the complaints in light of the following seven factors.

(1)   the claimant's daily activities;
(2)   the nature, location, onset, duration, frequency, radiation and intensity of any pain or other symptoms;
(3)   precipitating and aggravating factors;
(4)   type, dosage, effectiveness, and adverse side effects of any medication you receive or have received for your pain or other symptoms;
(5)   treatment, other than medication, for relief of pain or other symptoms;
(6)   any measures you use or have used to relieve your pain or other symptoms; and
(7)   functional restrictions.

Discuss the complaints in light of these factors and explicitly state how they lead to the conclusion that the claimant’s complaints are credible/partially credible/not credible (or maybe INcredible <grin>). I generally summarize the claimant’s assertions, going factor by factor. Then I start a new paragraph and tell whether and why those claims are (or are not) credible. Be sure to address the consistency of: the claimant’s statements; the nature and extent of treatment vs. severity of complaints; whether the doctor’s made any comments re: symptom magnification, drug seeking behavior etc. Whenever you make a reference to a specific document include a cite to that exhibit…. e.g., Dr. Jones found the claimant’s range of motion in his lumbar spine was severely restricted. (Exhibit 5F).

c)   here is an example of a brief subjective complaint analysis I did for a step 5 favorable decision.

The claimant asserts that she is disabled and unable to work primarily because of chronic pain in her left knee and low back pain. The claimant asserts her daily activities are restricted. She is unable to stand or walk for prolonged periods without exacerbating her knee pain. She has difficulty performing household chores and has to take more breaks than usual. The pain is also exacerbated by climbing, crouching, kneeling or crawling. She has taken prescription medications including Celebrex. Dr. G. performed arthroscopic surgery on her knee in August 2003, but he indicates she has continued to have problems with the knee. She has used Ibuprofen and heat treatments for pain.

Evaluating the claimant's subjective complaints under the criteria set forth in 20 CFR 404.1529, 20 CFR 416.929 and SSR 96-7p leads to the conclusion that they are credible. This conclusion is supported by the reports of Dr. G., her treating orthopedic surgeon, Dr. S., Dr. J. and [mental health facility] and objective findings. X-ray and MRI testing confirmed a torn meniscus and significant patellofemoral arthritis. Her condition is further complicated by degenerative disc disease.

2)   What is the ALJ’s RFC? What were the hypotheticals given to the VE? [This is found in the hearing notes & instruction sheet. If there is a conflict, listen to the tape to get “exactly” what the judge and/or rep asked the VE.]

i)   list the limitations the ALJ found

(1)   which opinions does the ALJ say supports his position

(2)   which opinions does the ALJ say need to be distinguished. (i.e. they don’t support his opinion and the writer has to explain why the ALJ is correct in giving them little weight).

Now you know your goal. This is where the decision needs to go. You have to show how the evidence leads to this conclusion.

ii)   Describe and discuss ALL the Doctor’s opinions

[list and quote EACH opinion listing the limitations; note the ex. #; and explain what supports/opposes each opinion within the entire record.

1.   Is the narrative portion of the source’s report(s) consistent?
2.   Are there sufficient objective findings supporting it?
3.   do records and/or opinions from other sources agree or disagree?

Show how they tie together to support the ALJ’s conclusion regarding the claimant’s limitations.

4.   Don’t forget that the claimant’s admissions regarding activities [to doctor’s, to friends, in testimony or in written statements] can be used for this purpose. Often this is some of the most convincing evidence.

Here are some examples:

1.   this is from the same step 5 favorable quoted above re: credibility

Dr. G. essentially opined the claimant has the following limitations: lifting a maximum of 10 - 15 pounds occasionally and 5 - 10 pounds frequently; standing and/or walking about four hours in an eight hour workday; sitting about six hours in an eight hour workday; and no climbing, crouching, kneeling or crawling. These limitations are consistent with and supported by the objective findings verifying the knee and back impairments as well as her treatment history. There are no contrary opinions from any of the treating or examining sources. His opinion is entitled to great weight. For these reasons, and considering the whole of this evidence, the claimant is found to have the following limitations: lifting a maximum of 10 - 15 pounds occasionally and 5 - 10 pounds frequently; standing and/or walking about four hours in an eight hour workday; sitting about six hours in an eight hour workday; and no climbing, crouching, kneeling or crawling.

2.   this is from another step 5 favorable

Dr. T. and Dr. P. both essentially opine the claimant has the following limitations: lifting a maximum of less than ten pounds; standing and/or walking less than two hours in an eight hour workday for a maximum of less than thirty minutes at a time; sitting less than six hours in an eight hour workday for a maximum of less than thirty minutes at a time; avoid bending, stooping, crouching, crawling or kneeling; and poor ability to sustain a eight hour day – forty hour week schedule. These are well supported by the objective findings, including reduced range of motion in the lumbar spine, disc bulging and impingement evident on x-ray and MRI testing, and neurological testing confirming reflex sympathetic dystrophy. Considering the whole of this evidence, the claimant is found to have the following limitations: lifting a maximum of less than ten pounds; standing and/or walking less than two hours in an eight hour workday for a maximum of less than thirty minutes at a time; sitting less than six hours in an eight hour workday for a maximum of less than thirty minutes at a time; avoid bending, stooping, crouching, crawling or kneeling; and poor ability to sustain a eight hour day – forty hour week schedule.

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