More Mistakes Social Security Makes That You Can Use in Your Disability Appeal

(Page 2 of 2 of Top Ten Mistakes Social Security Judges Make on Your Disability Case)

By , J.D., University of Missouri School of Law
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If you've received an unfavorable or partially favorable decision after your disability hearing, you should examine the Administrative Law Judge's decision for factual or legal errors. If you find a significant mistake that could change the outcome of your case, you should appeal your case to the next step, the Appeals Council.

Some of the most common errors made by Social Security include failing to afford proper weight to your treating doctor's opinion, assigning you an incorrect Residual Functional Capacity (RFC), or asking incomplete questions of the Vocational Expert (VE). (Read about those errors in the first page of this article, on common mistakes made by Social Security judges.)

Here are several more mistakes ALJs make in their decisions that you can appeal to the Appeals Council, all having to do with when the judge improperly ignores or discounts available evidence.

ALJ Didn't Give Specific Reasons for Not Finding You Believable

The ALJ is required to make a determination ("finding") of your credibility and to use specific reasons in explaining that finding in his or her decision. For instance, if an ALJ finds that an applicant's testimony is not believable, a conclusory statement such as "the claimant's allegations are not credible" or "the claimant's allegations are unsupported by objective medical evidence" is insufficient. The ALJ needs to be more specific; for example, "The claimant repeatedly made inconsistent statements about his use of alcohol." The Appeals Council generally gives wide latitude to ALJs in determining whether an applicant is credible, but only when ALJs provide reasoned explanations of their findings.

ALJ's Discussion of Your Testimony Left Out Important Information

The ALJ is not permitted to mischaracterize or inaccurately summarize your hearing testimony in his or her decision, although this happens with surprising regularity. For example, if you state at the hearing that your friend takes you grocery shopping once per month, but you need to use a motorized cart while at the store and can't unload your groceries due to pain, the ALJ should not summarize your testimony by saying, "The claimant stated she is able to go grocery shopping." Request the audio recording of your hearing to compare what you actually said with what the ALJ claims you said.

ALJ's Decision Didn't Discuss Serious Side Effects of Your Medication

Social Security regulations require the ALJ to consider the type, dosage, effectiveness, and side effects of all of a claimant's medications. If, for example, you take pain medication that causes you nausea and fatigue, the ALJ should discuss these side effects and how they would affect your ability to work. The limitations caused by these side effects should be a part of your RFC and should at least be mentioned in the judge's decision.

ALJ Did Not Consider the Observations of Non-Physician Medical Professionals

Social Security splits medical professionals into two categories: "acceptable" medical sources (physicians, psychologists) and "other" medical sources, which include therapists, counselors, chiropractors, registered or vocational nurses, and social workers. For claims filed on or after March 27, 2017, Social Security added physician assistants (PAs), advance registered nurse practitioners (ARNPs) (known as advanced practice registered nurses (APRNs) in some states), and licensed audiologists and optometrists to the list of acceptable medical sources.

While the "unacceptable" sources may not establish the existence of a medically determinable impairment (this basically means they can't provide a diagnosis of the condition that could be causing your symptoms), these nonmedical sources may provide information and opinions about the severity of your impairment and how it affects your ability to work. But while ALJs are supposed to consider the opinions or observations of these non-physician medical sources, they are no longer required in their decision to explain the weight given to them, so it is harder to use this argument on appeal.

ALJ Did Not Develop Your Medical Record

ALJs are required to make sure there is enough evidence in your record to fairly decide the case. Unlike a regular court case, where each side is responsible for finding their own evidence and presenting it, the U.S. Supreme Court has held that Social Security proceedings are not "adversarial," but "inquisitorial," meaning that the ALJ has a duty to investigate the facts and develop the evidence supporting and opposing your case. If the medical evidence in your case is unclear or insufficient to allow the judge to make a fully informed decision, the ALJ may need to re-contact your physician or send you for a consultative examination with one of Social Security's doctors.

For instance, there is often some indication in an applicant's file of a low IQ (such as past special education classes or reported difficulty reading and writing), but no recent IQ test results. Because a low IQ can extremely important in a disability case, the ALJ may be required to send you for an intelligence test before deciding your case. Failure to do so can be "reversible error."

Sorting Through Errors

Remember that ALJ decisions almost always contain some error of fact or law that can be argued to the Appeals Council. Social Security regulations and the reviewing federal courts require a great deal of specificity and accuracy in ALJ decisions, and it's a good bet that if an error can be made, it has been made by an ALJ at some point in time. Your chances at the Appeals Council will be improved substantially if you focus on specific, non-trivial mistakes of law and fact, especially those related to your doctor's opinions, your RFC, and the VE's testimony.

Before trying to handle an appeal to the Appeals Council or federal court on your own, consult with an experienced disability attorney to get advice on what mistakes the ALJ might have made in your case.

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