November 24, 2017

How to Use the Listings

How should you proceed if you think that your medical condition meets a listing?   Your best course of action will be to enlist the help of a long time treating physician.   Support from a specialist is preferable but your family doctor’s option will also carry significant weight.

What to do at the Initial or Reconsideration Stage

At the initial application and reconsideration appeal stages, your case will be in the hands of a disability adjudicator, who is a Social Security employee trained to evaluate disability claims.  Bear in mind that adjudicators are not lawyers and they are not judges.  They are government employees who are looking for very specific information.

Adjudicators rarely approve cases under a functional capacity or grid rule theory of disability.   Your adjudicator is not trained or authorized to weigh evidence.  They are trained to look for listing level evidence.

At the initial and recon stages, the adjudicator is looking for three things:

  • a long and consistent treatment record from your doctor(s)
  • evidence in the medical record that documents through diagnostic testing a listing level medical issue
  • statements in the record from your treating doctor that duplicate the language of the applicable listing

One tactic that we have seen used with great success is as follows:

  1. identify the applicable listing
  2. use language from that listing in your initial application for disability, request for reconsideration and disability report
    1. identify the applicable listing and listing subsection,
    2. the objective testing involved,
    3. the earliest date when your condition met the listing,
    4. attempted treatment and the results of that treatment and
    5. the likelihood that you do not have the capacity to sustain full time employment for 12 consecutive months (or ongoing) due to your symptoms and/or medication side effects.
    6. secure a narrative report from your treating physician which concludes that you meet or equal a the listing.  This report should include language included in the listing and document that you met all elements of the specific listing section.

Why Might a Listing Level Claim be Denied at Initial Application or Reconsideration?

Social Security would like us to believe that state agency adjudicators spot and approve most listing level cases early on in the application process.  In fact, judges usually approve claims using a rationale other than the listings – most hearing approvals are based on either the functional capacity argument or the grid rules.

However, a significant number of listing level cases do slip through the cracks.  There are several reasons for this:

  • state agency adjudicators are overworked and understaffed – it is easier to stamp “denied” on a complicated claims file and pass it along than it is to wade through hundreds or thousands of pages of complex medical records
  • state agency adjudicators do not have specialized medical training – they may not understand or recognize that your condition is listing level
  • your doctors are focused on treatment and not on generating paperwork for Social Security that makes it obvious that you meet a listing.  Many severely ill or injured people do not hire a lawyer early on because their disabling condition is so obvious, so there is no lawyer working to organize the medical record or to assist the doctor in documenting that you meet a listing
  • if you filed a previous application for benefits, but did not appeal and now refiled, some adjudicators will simply stamp “denied” and pass the file along
  • if you tried to work after your onset date, some adjudicators will conclude that your condition must not be especially serious
  • click here for an article I wrote about why a listing level traumatic brain injury claim might not get approved at initial or reconsideration.

Whatever the reason for the denial, if you believe that you are disabled because you meet a listing or because you simply cannot be a reliable employee, you should file your appeal no later than 60 days from the date you receive the denial.

What to do at the Hearing Stage

If your case has been denied at reconsideration and you have requested a hearing, there is a good chance that you are now represented by counsel.  If not, this is a good time to consider hiring a lawyer – in most cases lawyer work on Social Security disability cases under a contingency contract so you will not have to pay a retainer out of pocket.

Your lawyer will, hopefully, discuss with you which disability arguments he/she plans to pursue in your case.  Remember that you are not limited to just one – your lawyer can argue that your condition meets a listing, but if not, your functional capacity has been eroded to the point where you cannot function in a work environment.

Our experience has been that if you include a listing argument it is generally best to identify one specific condition that appears to meet the listing.  If  you have multiple medical issues that, when combined, leave you unable to work, that sounds more like a functional capacity argument.

When pursuing listing level arguments, most lawyers have or can produce a listing checklist that tracks the language of the listing.   A checklist has the advantage of brevity, that is, your treating doctor can check of the appropriate symptoms quickly without having to draft a narrative report.

Your lawyer can supplement the checklist with a pre-hearing brief that identifies the specific pages in  your record that contain diagnostic test results and references to your condition.

You can help your lawyer by discussing your disability claim with your doctor and securing his agreement to cooperate with your lawyer.

Case Studies – Approved Listing Level Cases

Hearing Report 1: 49 year old male with less than high school education claiming disability based on amputated left leg.  This listing level case was approved “on-the-record” following attorney’s submission of pre-hearing brief.  Click to read case study and brief.