Thank you very much for your valuable time, and thorough response in regard to clarifying the matter.
Completing this in phases is just fine. Thank you!
Yes, you are correct.
The AC had "denied review of the ALJ's decision."
The new and material evidence ought to have been reviewed; so, if the Commissioner denies the request for review, the federal district court ought to remand, as it will be unable to determine whether substantial evidence supports the AC's decision. Or, on the contrary, or more aptly, it will (hopefully) find that the finding of not disabled was not based on substantial evidence.
(The regulations ought to require the AC to articulate its decision, as the ALJ is required. The laws DO require that. Ryan, you need to read the SSRs, HALLEX, etc., and you fill find much fodder for your Appeal. Also, check our Sarah Bohr's publications. I use them for AC appeals and they are similarly used for federal court appeals. They will tell you exactly what must be considered and articulated and not merely concluded. You can order them tomorrow (cheap, I think I paid $105 which included shipping) and they will be there in a matter of days.
Such inconsistency and unjust measures appear to prolong the appeal procees, and waste valuable time and tax dollars, etc.) Yes, but that shouldn't be your argument.
The treating physician has not provided a, recent, thorough opinion in regard to the Plaintiff's limitations/restrictions accept for signing an unprofessional document, titled "Self-Imposed Work Restrictions," which the Plaintiff faxed the physician That is NOT the basis either. Remember, the AC and the federal court can ONLY review what was put into the record. If claimant failed to provide the evidence, it wasn't in the record. So the ALJ can't have NOT considered what wasn't there. You see?
(Therefore, Plaintiff only recieved a Partial Decision. Do you mean a partially favorable award? Was it for a close period only? Or a different/later onset date?
The AC ought to have used his discretion to clarify the matter; however, chose to not). No, what they do if they find the ALJ failed to do something and more evidence is needed to determine it, is remand it. However, the AC often fails to consider appropriately, and so there is federal court.
A year prior, the physician deemed the Plaintiff totally disabled Note that the SSA does not consider a doctor's opinion on the conclusion of "disabled" - because that conclusion is "reserved for the Commissioner. Doctors opinions are only valid if the concern medical opinions, not vocational opinions, unless the doctor is a vocation expert in addition to a medical expert (which I have never seen).
with severe limitations, which were identified
(The RFC Do you mean the RFC drafted by the SSA medical expert who did not examine the claimant? Only reviewed the case file and medical evidence that was within it....
was given greater weight, as it is more recent, It may have some wait as to recentness, but remember that it was written by a doctor that never even saw the claimant, so all else being even, it would have less weight than a treating physician... and there are SSRs to that effect... so my federal court brief (and AC brief, but too late for that now) would point to the decision where the ALJ violates that SSR and that would be one of my points of appeal.....
and the physician Which? did state the patient could "essentially" return to sedentary work; however, the limitations, at that point, were not identified.). Which may mean that there was no evidence of these other limitations at that point in time.....
So that RFC of the claimant's own doctor was NOT helpful, but hurtful, it sounds like.
Therefore, a recent opinion is required in order to constitute substantial evidence; No, that is not how it works at this point. At this point, you are asking the federal court to find that the ALJ's decision is not based on substantial evidence and/or that he violated some SSA law/reg/rule that would require a remand (or a reversal, if Medical Evidence of Record is clear that the person is legally disabled, and when)... You are not asking the court to go get new evidence OR to allow new evidence in. This court does NOT try the case - it will only see if the "rules" were followed below, such that the claimant's right to have his claim properly adjudicated was not violated.
The standard of review is what you may be getting confused on. Federal courts review the Social Security Commissioner’s denial of Social Security Disability benefits only to decide whether: 1) the final decision is supported by substantial evidence and 2) whether the Commissioner (i.e. ALJ as agent of the Commissioner) used the proper legal standards to evaluate the evidence. There are 4 main ways to determine if the Administrative Law Judge’s decision is supported by substantial evidence: (1) the objective medical facts; (2) the diagnosis and expert opinions of treating physicians on other questions of fact (like, "he walks with an antalgic gait"); (3) subjective evidence of pain as testified to by the Plaintiff, family, neighbors, doctors etc. and (4) the Plaintiff’s educational background, work history and present age.
If substantial evidence found in the record supports the administrative finding, then the only other potential ground for reversal is the application of an erroneous legal or procedural standard. No deference is afforded the Commissioner’s legal determinations which is good because review of legal issues is de novo.
otherwise, the findings of the RFC may dominate. (The RFC expert found Plaintiff must alternate every hour; limited to 6 hours sit in an eight hour work day, and limited to two hours stand in an eight hour work day.). If this is the doctor that didn't examine him... they tend to be pretty shabby.
(The math does not add up. For instance, the Plaintiff would require a benevolent employer due to the limitation of stand, which would cause the Plaintiff to not work during the sixth and eighth hour...What if he can do one of the jobs that allow him to sit for those hours? If you think there is none, find the SSR that states that, and the circuit court case, if any, that says so. Remember, sedentary jobs require (generally) 6 hours of sitting, 2 of walking/standing. There are plenty of such jobs. You can't just claim there are no such regulary, non-benevolent employers - you must show the SSA rule that says there are none..... Or if there are some, that those require XX abilitiy, which treating physician Dr. J. already stated he couldn't do....
Alternate position of sit and stand every hour: 1) sit; 2) stand; 3) sit; 4) stand; 5) sit; 6) no work; 7) sit; 8) No work. No work in 8th hour, is that because a credible doctor said he could not function after hour 7? Read up on what makes a treating physician's opinion as to capacities "controlling" on that issue, as opposed to disregardable by an ALJ.
The ALJ ought to have found Plaintiff's disability continues at step two of the eight-step process OK, problem here: It is a 5 step sequential process, not 8. http://www.ssa.gov/dibplan/dqualify5.htm. And step 2 doesn't even determine if there is legal disability, only if there is a severe impairment in terms of its limitations.
because Plaintiff has an impairment (the same listing of impairment as before), as the ALJ found Plaintiff's limitation included "no work on uneven surfaces." That is a limitation, but that does not negate all work.
Yes, first time every having to file in district court (I believe I have failed the Claimant, as I ought to have had more recent and relivant records. You ALWAYS get ALL records that exist up to the date of the hearing, and if some doctors are slow, at the hearing you request that the hearing remain OPEN for another 30 days so you can gather them. I have never had a judge deny me that extra time to beg the doctors some more.
The ALJ gave little weight WHY? to the most recent treating physician which supports the finding plaintiff is in chronic pain - The physician opines: "It is medically necessary Plaintiff lie down in order to alleviate pain."). I thought that was enough to substantiate the case; however, I m was wrong. You may not be - you have to review the ALJs reasons, and if he didn't give any, I find that to be a very appealable issue, and if he did, was it based on substantial evidence?
The ALJ has the discrepency to choose as he/she wishes, of course. To a degree, yes, but not if doing so violates the SSRs etc.
(Before Plaintiff's discharge, the treating physician excuses Plaintiff from jury duty. ...Only a three month difference. People can recover in 3 months, so you need to show that he did not. Also, was he discharged because he was better? Or because he was a maximum improvement and there was nothing more the doctor could do for him.... The latter would be more helpful......
And the most recent, new, physician indicates it is medically necessary he lie down.) That is good. If he is a long term (undefined but let's say several visits over 6-12 months or more) treating physician (vs. once or twice) look to the "controlling opinion SSR to argue that the ALJ violated SSR XX when he failed to accord Dr. J's opinion controlling weight on the issue of XX. (i.e. well-supported? not inconsistent with other MER?)
The ALJ fails to use his discrepency to consider the issue Plaintiff has to obtain necessary medical treatment, including prescribed pain medication, from the Work. Comp. adjuster - currently going throguh litigation. I don't understand what you are saying here....
(At the time of the decision, Plaintff could only obtain over-the-counter medication due to the WC denial of benefits.) I hate WC :) It really screws over the very injured, certainly. There IS a ruling (go to LinkedIn, Group: Social Security Disability or Group: Social Security Professionals - one of those has a great thread discussing this - how ALJ must consider the reasons why a person can't get medical treatment/ Rx's, etc., since it is possible it could be because he was poor/no ins. rather than simply showing he must not be in pain.
...Really need to kindly demand the former treating physician to calrify OK, you are way off here. First, the former treating physician doesn't have to do anything. Second, even if you sweet talked him into doing so,you can't use it NOW - only if you get a remand. And then you'll need it. (And when I say sweet talk, I mean it, we ask nicely, because they dr. is not obligated legally to do swat. It can be very troublesome. That is why I encourage my clients to see several docs - PCP, Specialist for X problem, one for Y problem, etc..... If they have health insurance and can do this, HOORAY!
the Plaintiff's work restrictions/limitation, including the clarity of the document Plaintiff sent him. You can get another from him hopefully - offer to pay, since he is no longer the doctor, many don't give a hoot of their current patients' plights, much less formers - in terms of being willing to fill out a brief 3 minute form. And others are wonderfully compassionate.
Although the document is unprofessional, it includes Plaintiff lie down at times in order to alleviate pain, which would be excellent to have in professional format. Really format is less important than substance and if it says what the law says it must state.
(This evidence must be clarified, especially as the physician appears to be avoiding the matter; perhaps due to the work.comp. matter. If he is the WC doc, yes, he is likely unhelpful. Not much you can do other then try to persuade him with $$.
Unsure really. The physician has failed to respond to several letters.) So typical. Believe me, this is NOT an easy area to gather evidence. But a necessary one. If you get the remand, and if his DLI is not up yet (unlikely though, right?), consider having him go to an occupational therapist or orthopedist for a full eval., physical, with the understanding that they will fill out your form and or provide their own. Cheapest I have had is $300 for this (client paid). Some wanted to charge $900.
Sorry for the confusion and mixed thoughts, etc.. ...Lot's on my mind, and a very busy day. Tell me about it.
Now, let me just clarify on your FIRST post, since that is what you originally wanted:
Please provide the exact source (i.e., url) where the requested forms may be obtained (downloaded / printed). - See below. You CAN'T submit any such forms. No such thing here. That is because you can not submit new evidence - you are only arguing that the case below was not done right.
Person - Pro Se Litigant
Case - SSDI
Issue - Obtaining Appropriate Forms
Court - Eastern District of California Yes, this is federal court. I believe your prior expert (#2 not #1) confused California state court with federal court. And confused appeal of administrative agency decision with trial court.
The patient (Pro Per) composed a one page document consisting of self-imposed work restrictions, What is with this self imposed business? This is sounding very contrary to being legally disabled - you have to be disabled not due to your own decision but because of you medical impairments.....strange.....
which consisted of the request for his treating physician to approve, as to whether he agreed. I wouldn't go about it that way exactly - although admittedly there is no great way either, just better ways.
The physician agreed/concurred by singing the form.
However, the form was unprofessional and somewhat difficult to understand.
Therefore, clarification is needed. Yes, should you get another bite at that apple. If your guy's DLI is after his hearing - file another application pronto! Using the day after the hearing as the alleged onset date.
Thus, please identify the form which is to be used to request the physician to clarify his opinion. There is no form. We all make our own. There ARE however, forms floating around on the internet. The are often called medical source statements "as to symptoms and limitations." However, again, no doctor is required to comply AND, you can't use it now at all.
The physician discharged patient, as there was nothing more he could do for him.
However, the physician did not provide an opinion in regard to the patient's work restrictions/limitations. Typical. Not unusual. If not asked that is not something typically found in his medical records.
Therefore, clarification is needed. Understood. But again, won't help you in this appeal.
Thus, please identify the form which is to be used to request the physician to clarify his opinion. See above. I think we are clear now, right?
...The physician is also an IME/QME. Since the physician discharged him, is the patient not permitted to attain an IME/QME? If you are referring to WC rules, they are terrible and differ. However, if he no longer is in a WC case (if they are no longer treating him), he can ask his WC attorney if he can see his own doctor. And yes, as noted above, he may need to get his own RFC completed by a doctor who can give him a through physical/occupationsal eval. Again, will only work if his DLI is not yet passed.
If the patient is, please specify the required form, if there is one. Sorry But I hope I have cleared some things up.
Books/binders you may want to get if you plan on more disability work: William Travers... Thomas E. Bush... Sarah Bohr..... etc. They were / are my bible.
Please specify the document(s) which may be used as litigation questions. There are none, since you are not litigating this, you are appealing.
The Plaintiff would like to pose several questions to the physician. I am sure. Good luck with that one.
Please assist in composing the first paragraph (including the identification of the specific laws, rules, and regulations). No laws make the good doctor do anything for us or his patient with regards XXXXX XXXXX an opinion.
The following is an example:
PLEASE TAKE NOTE that pursuant to ?????, Plaintiff hereby requests Dr. ????? to fully answer the following interrogatories Another confusion - interrogatories are sent to PARTIES to a case (such as a personal injury case), not required of others....
and requests for production under oath within thirty (30) days after service. Nah, you can't force the guy. An ALJ can subpoena docs, but unfortunately can't even enforce the subpoena.....
PLEASE TAKE FURTHER NOTICE that if Dr. ????? fails to make or cooperate in providing answers to these interrogatories and production requests, the Plaintiff will call upon the Easter District Court of California to impose sanctions as provide in ?????. Not :( Sorry.
Any additional advice would be very much appreciated. I hope I have provide some food for thought here.
Thank you so much for your valuable assistance regarding this important matter. Welcome. Your job now, as I see it, is to write that brief and show the actual LAWS (SSRs and if you can find circuit court cases in YOUR circuit) that the ALJ neglected to follow. And really, get Sarah Bohr's samples. She is terrific.
I will certainly clarify again; please just ask.
I will response asap, hopefully within a few hours from your response.
(I will return within a few hours.) I'll check in tomorrow - this night is about over.
Completing this in phases is just fine.
Thank you so much for your time, Alexia. You bet Ryan. I love this stuff :) And always enjoy helping a colleague starting out in it. There needs to be more caring disability reps, and you sound like one.
It is truly appreciated.