Category Archives: Social Security Disability

Social Security Disability: Mild Mental Retardation

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20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05.  Section 12.05 provides that the required level of severity for mental retardation is met with “a valid verbal, performance, or full scale IQ of 59 or less.” “The Secretary . . . expressly singled out individuals with Mild Mental Retardation for special treatment in determining entitlement to disability benefits.”  Brown v. Secretary of Health and Human Services, 948 F.2d 268 (6th Cir. 1991).  Per Listing 12.05, the claimant must prove that he exhibited significantly sub average general intellectual functioning with deficits in adaptive functioning that initially manifested during the developmental period (before age 22).  However, “there is a presumption that mental retardation is a condition that remains constant throughout life.”  Hodges v. Barnhart, 276 F.3d 1265 (11th Cir. 2001).  Thus, a claimant “need not present evidence that she manifested deficits in adaptive functioning prior to age 22 when she had offered evidence of low IQ test scores after age 22.” Id.   The requirement that mental retardation or low IQ beginning before age 22 is met when nothing in the record reflects an incident in which the claimant suddenly became mentally retarded.  Lowery v. Sullivan, 979 F.2d 835 (11th Cir. 1992).  In other words, the claimant is entitled to a presumption that his intellectual limitations began before age 22.

If a claimant satisfies the listing criteria he is to be found disabled per se.  Todd v. Apfel, 8 F.Supp.2d 747, 754 (W.D. Tenn. 1998); Johnson v. Sec’y of Health & Human Services, 794 F.2d 1106 (6th Cir. 1986).  A claimant who is not currently engaged in substantial gainful activity who has an impairment that meets or equals a listing is entitled to disability benefits.  Durham v. Apfel, 34 F.Supp.2d 1373, 1381 (N.D. Ga. 1998).  Even if the claimant worked previously with the severe impairment that meets or equals a listing, he/she is still entitled to a finding of disability.  Id.

“A claimant whose impairment meets a listing is disabled when not working, even if he or she worked in the past with the impairments, and even if he or she could return to his or her past work.”  Ambers v. Heckler, 736 F.2d 1572, 1576 (11th Cir. 1985).  As succinctly stated by the 6th Circuit, “if a claimant is not engaged in substantial gainful activity and also validly meets a listing, the Secretary must find claimant disabled without regard to residual work capacity, age, education, or experience.  It is not correct under the regulatory scheme to find that a claimant satisfies a listing but is nonetheless able to work.”  Johnson v. Secretary of Health and Human Services, 794 F.2d 1106 (6th Cir. 1986).

If you need assistance with your disability claim, call The Hamilton Firm.

Vocational Testimony and the DOT

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During a hearing, the vocational expert will sometimes testify as to matters not covered by the Dictionary of Occupational Titles (DOT) and/or at variance with the DOT. An ALJ is required to ensure that the vocational expert’s testimony is consistent with the DOT, and if not, such conflicts must be resolved. SSR 00-4p “emphasizes that before relying upon VE…evidence to support a disability determination or decision, our adjudicators must identify and obtain a reasonable explanation for any conflicts between occupational evidence by VEs…and information in the DOT…and explain in the…decision how any conflict that has been identified was resolved.”

COPD, Smoking and Disability

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In Deso v. Astrue, 2011 U.S. Dist. Lexis 137646 (D.Vt. Nov. 29, 2011), the district court held that “it was legal error for the ALJ to base his negative credibility determination primarily on failure to stop smoking. . . .”  The District Court relied upon a 7th Circuit decision in stating: “This is an unreliable basis on which to rest a credibility determination.”

If you are disabled due to COPD and you would like to talk to a Georgia and/or Tennessee Disability Lawyer, contact Patrick Cruise at The Hamilton Firm.

Who is your ALJ?

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SSA, and in particular, the Office of Disability Adjudication and Review (ODAR) is implementing a new national policy: “the name of the judge will no longer be included in the notice of hearing.”  In other words, advocates and claimants will not know the Judge (ALJ) deciding the claim until the day of the hearing.  Such a policy was intended to stop advocates from “judge shopping”, but the consequences could be substantial.  Most advocates craft the presentation and Brief differently depending upon the particular likes and dislikes of the ALJ handling the claim.

For more information on Disability claims, check out our Tennessee and Georgia Disability Blog.

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