ParaRegs-Disability-General Disability Rules

Code

Effective

ParaReg Text

1300-1



Disability may be verified by a Social Security Administration (SSA) Title II award letter which shows current receipt of benefits and no reexamination date or a reexamination date in the future, or an SSA Title II increase or decrease notice, or a signed statement from the SSA which indicates that the applicant is eligible to Social Security benefits based on disability.  (§50167(a)(1)(B))

1300-2



The Social Security Administration (SSA) makes disability determinations based on social security law.  A disability determination by any other governmental or nongovernmental agency is not binding on the SSA.  (POMS DI 24515.011)

1301-1



The Federal District Court has held that a Social Security Administration (SSA) determination of nondisability superseded a previous state agency determination of disability. On August 31, 1992 the U.S. District Court, C.D. Cal., No. CV 87-3901 AWT, issued a Second Amended Declaratory Judgment and Injunction in Disabled Rights Union v. Kizer.  This Judgment declared that 42 CFR §435.541(b) (1991) was invalid because on its face it directly conflicted with the requirements of 42 U.S.C. §1396(a)(v). The court further ordered that no action should be taken to terminate a Medi- Cal recipient's benefits until the SSI appeal period has expired and it has been determined that the recipient did not appeal the SSI denial timely, or did not have good cause for an untimely filing.  (Disabled Rights Union v. Kizer (1990) 744 F.Supp. 221)

1301-2



Federal law provides that a State plan may provide for the making of determinations of disability or blindness for the purpose of determining eligibility for medical assistance under the State plan by the single State agency or its designees, and make medical assistance available to individuals whom it finds to be blind or disabled and who are disabled or otherwise eligible for such assistance during the time period prior to which a final determination of disability or blindness is made by the Social Security Administration (SSA) with respect to such an individual.  In making such determinations, the State must apply the definitions of disability and blindness found in Section 1614(a) of the Social Security Act.  (42 United States Code (USC) §1396(a)(v)(i), added in November 1990) The administrative review process is available to applicants.  The section states that after an initial determination is made by SSA, an applicant may request reconsideration, a hearing before an Administrative Law Judge (ALJ), and review by the Appeals Council before exhausting the administrative review process.  Subsection (a)(5) states that when the applicant has completed those steps of the administrative review process, SSA will have made its final decision.  (20 CFR §416.1400)

1301-3

 

 

The CDHS has instructed counties as follows: Due to the numerous levels of appeals and extensive backlogs in Social Security Administration (SSA) hearings, beneficiaries could receive Medi-Cal for several years before a final decision is rendered.  "A decision becomes 'FINAL' when the beneficiary does not or cannot appeal the termination of Title II or SSI/SSP disability benefits any further.  Medi-Cal benefits will continue through the 65-day period following the denial of an appeal in which the next level of appeal can be filed." (All-County Welfare Directors Letter No. 97-28, June 23, 1997, p. 5)

1302-1



Verification of disability may be made in accordance with procedures established by the Disability and Adult Programs Division (DAPD), formerly known as the Disability Evaluation Division (DED) of the California Department of Social Services.  Except in the event of a delay due to circumstances beyond the control of the county, all necessary information shall be submitted to DAPD within 10 days after the county's receipt of the Statement of Facts.  (§50167(a)(1)(D); All-County Welfare Directors Letter No. 97-54, December 1, 1997)

1302-2

 

 

The DED (now called the DAPD) evaluates disability and prepares a rationale explaining the basis for the decision when the person is determined not disabled.  The rationale for the denial is sent to the county attached to the form MC 221.  These rationales must be attached to any denial notice sent to the applicant.  The denial notice must state that the application is denied due to lack of disability and refer the applicant to the attachment for further explanation.  Notices which do not contain the rationale constitute inadequate notice.  Do not attach any other documents, including the MC 221, as such documents are not written for clients and are confusing and/or misleading to the applicant.  (All-County Welfare Directors Letter (ACWDL) No. 86-52, September 29, 1986; Visser v. Kizer)

1302-3

 

 

The Social Security Administration (SSA) issued an Acquiescence Ruling (AR) implementing Chavez v. Bowen.  AR 97-4(9) was published on 12/03/97, to explain how the decision by the Ninth Circuit Court of Appeals in Chavez will be applied within this circuit.  The court in Chavez concluded that a final decision of the Commissioner after a hearing by an administrative law judge (ALJ) that found the claimant not disabled gives rise to a presumption that the claimant continues to be not disabled after the period adjudicated, and that this presumption of continuing nondisability applies when adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as the prior claim.  In order to rebut the presumption of continuing nondisability, a claimant must prove "changed circumstances" affecting the issue of disability with respect to the unadjudicated period.

 

The court further indicated that where the claimant rebuts the presumption by proving a "changed circumstance," the Commissioner then must give effect to certain findings contained in the final decision on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period involved in the subsequent claim.  The court concluded that where such final decision on the prior claim contained findings of the claimant's residual functional capacity (RFC), education, and work experience, the Commissioner may not make different findings in adjudicating the subsequent disability claim unless there is new and material evidence relating to the claimant's RFC, education, or work experience.  (POMS DI 32720.001B., implementing AR 97-4(9))

 

This AR applies at the initial, reconsideration, ALJ, or Appeals Council (AC) level when the following are met:

 

*           The adjudicator is deciding a subsequent disability claim with an unadjudicated period arising under the same title of the Act as a prior disability claim, and

 

*           There was a decision by an ALJ or the AC on the prior disability claim that the claimant was not disabled (i.e., that the individual did not become disabled or that the individual's disability had ceased, see POMS DI 32720.010B.3) and this decision has become final, and

 

*           The final decision by the ALJ or AC that the claimant was not disabled was based on the individual's work activity or earnings, on an evaluation of the medical evidence of the individual's impairments alone, or on a consideration of both medical and vocational factors, and was not based on the individual's failure to cooperate, failure to follow prescribed treatment, or whereabouts unknown, and

 

*           The claimant resides in, e.g., California.

 

(POMS DI 32720.005)

 

A claimant may rebut the presumption of continuing nondisability by showing a "changed circumstance" affecting the issue of disability with respect to the unadjudicated period.  A "changed circumstance" refers to a change in the circumstances on which the ALJ or the AC based the final decision that the claimant was not disabled.

 

Basis for ALJ or AC decision that claimant was not disabled:

 

Examples of "changed circumstance":

 

 

 

Claimant's performance of substantial gainful activity (SGA).

 

-           Reduction in or cessation of work activity.

 

 

 

Claimant's impairment(s) not severe; or Title XVI child claimant's impairment(s) does not meet, medically equal, or functionally equal in severity a listed impairment in the Listing of Impairments.

 

-           An increase in the severity of the claimant's impairment(s).

 

 

 

-           The alleged existence of an impairment(s) not previously considered.

 

 

 

Title II claimant or Title XVI adult claimant able to perform past relevant work.

 

-           An increase in the severity of the claimant's impairment(s).

 

 

 

-           The alleged existence of an impairment(s) not previously considered.

 

 

 

-           Past work the claimant was found able to perform no longer within the “relevant work period"  (POMS DI 25001.001 B.32 and POMS DI 25001.001B.37) because of the passage of time.

 

 

 

Title II or title XVI adult claimant able to perform other work.

 

-           An increase in the severity of the claimant's impairment(s).

 

 

 

-           The alleged existence of an impairment(s) not previously considered.

 

 

 

-           Claimant no longer in same age category (POMS DI 25001.001 B.1).

 

(POMS DI 32720.010A.3)

1302-4

 

 

All the regulations cited refer to the Manual of Policies and Procedures (MPP), unless otherwise noted.

 

Section 22-009.1 provides that a request for hearing must be filed within 90 days of the action with which the claimant is dissatisfied. If the claimant received adequate notice of the action, the date of the action is the date the notice was mailed to the claimant.

 

Section 22-001(c)(5) defines a county action as one which requires adequate notice, as well as any other county action or inaction relating to the claimant’s application for or receipt of aid.

 

Section 22-021.1 provides that the county is required to provide adequate notice when aid is granted, increased, denied, decreased, suspended, canceled or discontinued. Adequate notice must also be provided when the county demands repayment of an overpayment or Food Stamp overissuance. Adequate notice is defined as written notice informing the claimant of the action that the county intends to take, the reasons for the intended action, the specific regulations supporting such action, an explanation of the claimant’s right to request a state hearing, and if appropriate, the circumstances under which aid will be continued if a hearing is requested. When appropriate, the notice shall also inform the claimant regarding what information or action, if any, is needed to reestablish eligibility or determine a correct amount of aid. In all cases, the notice is to be prepared on a standard form approved by the State Department of Social Services. The notice shall be prepared in clear, nontechnical language and shall be mailed or given to the claimant in duplicate. See also §22-001(a).

 

A request for hearing shall be dismissed if the request for hearing is filed beyond the time limit set forth in §22-009. (§22-054.32)

1302-5

 

 

In Udd v. Massanari, the 9th Circuit Court of Appeals reviewed the petitioner’s claim that he was entitled to review a discontinuance of his Social Security disability benefits on October 31, 1976.  The petitioner sought reinstatement of his benefits effective November 1, 1976, even though he had not filed an appeal on the discontinuance for more than 15 years.  The reason for the late filing was that the petitioner allegedly lacked the mental capacity to understand the termination notice, and he had no person to represent him.  The Appeals Court agreed with these contentions, determined the filing was timely, and order benefits restored effective November 1, 1976.

 

The basis for this conclusion - as to the timely filing - is set forth in the analysis below:

 

"It is axiomatic that due process requires that a claimant receive meaningful notice and an opportunity to be heard before his claim for disability benefits may be denied.  Mathews v. Eldridge, 424 U.S. 319, 333 (1976).  Udd argues that the 1976 termination of benefits denied him due process of law because his mental impairment prevented him from understanding the order of termination and complying with the administrative review process.

 

"In 1991, SSA issued Ruling 91-5p ('SSR 91-5p'), which provides that if a claimant presents evidence that mental incapacity prevented him from requesting timely review of an administrative action, and the claimant had no one legally responsible for prosecuting the claim on his behalf at the time of the prior adverse action, SSA ‘will determine whether or not good cause exists for extending the time to request review.'  SSR' 91-5p.  'The claimant will have established mental incapacity for the purpose of establishing good cause when the evidence establishes that he or she lacked the mental capacity to understand the procedures for requesting review.'  SSR 91-5p.  In making the 91-5p determination, the following four factors must be considered:  (1) inability to read or write; (2) lack of facility with the English language; (3) limited education; and (4) any mental or physical condition which limits the claimant's ability to do things for him/herself.  SSR 91-5p.  In all cases, '[t]he adjudicator will resolve any reasonable doubt in favor of the claimant.'  SSR 91-5p.

 

"If it is determined, applying the proper criteria, that the claimant lacked the mental capacity to understand the procedures for requesting review, time limits are tolled 'regardless of how much time has passed since the prior administrative action.'  SSR 91-5p.  In such cases, the adjudicator must 'take the action which would have been appropriate had the claimant filed a timely request for review.'  SSR 91-5p.  Thus, 'a finding of good cause [to extend the time for review] will result either in a determination or decision that is subject to further administrative or judicial review of the claim, or a dismissal (for reasons other than late filing) of the request for review, as appropriate.'  SSR 91-5p."

 

(Udd v. Massanari, supra, (2001) 245 F.3d 1096, 1098)

1303-1

 

 

Federal law provides, generally, it is the responsibility of the applicant to prove his or her disability.  (20 CFR §416.912)

1303-2

 

 

Federal law provides that if the applicant does not provide evidence needed and requested regarding disability, a decision will be made based on information available in the case.  (20 CFR §416.916)

1303-3

 

 

Federal law provides that if an applicant does not have a good reason for failing or refusing to take part in a consultative examination, he or she is subject to a determination that no disability exists.  Good reasons for failure to appear include illness on the date of the test, inadequate notice of the scheduled examination or test, inadequate information about the physician involved, or the applicant having had death or serious illness occur in the immediate family.  (20 CFR §416.918)

1303-4

 

 

Federal law states that in order to receive benefits, the applicant or recipient must follow treatment prescribed by her physician if this treatment can restore her ability to work.  When the applicant or recipient does not follow the prescribed treatment without a good reason, then she will not be found to be disabled.  Acceptable reasons for failure to follow prescribed treatment are as follows: (1) The specific medical treatment is contrary to the established teaching and tenets of the applicant or recipient's religion. (2) The treatment would be cataract surgery for one eye under certain conditions. (3) Surgery was previously performed with unsuccessful results and the same surgery is again being recommended for the same impairment. (4) The treatment because of its magnitude (e.g., open heart surgery), unusual nature (e.g., organ transplant), or other reason is very risky.  (5) The treatment involves amputation of an extremity or a major part of an extremity.  (20 CFR §416.930)

1303-5

 

 

Obesity is not necessarily a remediable condition.  It can be considered a contributing factor in determining disability.  While a claimant's “impairments can be improved by simply following a doctor's orders to lose weight, losing weight is a task which is not equivalent to taking pills or following a prescription.”  (Hammock v. Bowen (1989) 867 F. 2d 1209, 1215)

 

An ALJ cannot assume that obesity is remediable, and deny a claim based on failure to follow prescribed medical treatment, as required by 20 CFR §416.930.  The fact that a particular claimant had lost weight in the past does not establish that weight loss is feasible; rather, the fact that the claimant could not keep the weight off suggests the condition may not be remediable.  The “ALJ was required to examine the medical conditions and personal factors that bear on whether Dodrill [the claimant] can reasonably remedy her obesity.”  (Dodrill v. Shalala (1993) 12 F. 3d 915, 919 citing Hamock v. Bowen, supra)

1303-6

 

 

Before failure to follow prescribed treatment for obesity can become an issue in a case, one must first find that the individual is disabled because of obesity or a combination of obesity and another impairment(s).  20 CFR §416.930 provides that, in order to get benefits, an individual must follow treatment prescribed by his or her physician if the treatment can restore the ability to work, unless the individual has an acceptable reason for failing to follow the prescribed treatment.  SSA will rarely use "failure to follow prescribed treatment" for obesity to deny or cease benefits.

 

Social Security Ruling (SSR) 82-59 "Titles II and XVI:  Failure To Follow Prescribed Treatment," explains that failure to follow prescribed treatment exists when all of the following conditions are present:

 

-           The individual has an impairment(s) that meets the definition of disability, including the duration requirement, and

 

-           A treating source has prescribed treatment that is clearly expected to restore the ability to engage in substantial gainful activity, and

 

-           The evidence shows that the individual has failed to follow prescribed treatment without a good reason.

 

If an individual who is disabled because of obesity (alone or in combination with another impairment(s)) does not have a treating source who has prescribed treatment for the obesity, there is no issue of failure to follow prescribed treatment.

 

The treatment must be prescribed by a treating source, as defined in 20 CFR §416.902, not simply recommended.  A treating source's statement that an individual "should" lose weight or has "been advised" to get more exercise is not prescribed treatment.

 

When a treating source has prescribed treatment for obesity, the treatment must clearly be expected to improve the impairment to the extent that the person will not be disabled.  The goals of treatment for obesity are generally modest, and treatment is often ineffective.  Therefore, do not find failure to follow prescribed treatment unless there is clear evidence that treatment would be successful.  The obesity must be expected to improve to the point at which the individual would not meet the definition of disability, considering not only the obesity, but any other impairment(s).

 

Finally, even if it is found that a treating source has prescribed treatment for obesity, that the treatment is clearly expected to restore the ability to engage in SGA, and that the individual is not following the prescribed treatment, consider whether the individual has a good reason for doing so.  In making this finding, follow the guidance in regulations and SSR 82-59, which provide that acceptable justifications for failing to follow prescribed treatment include, but are not limited to, the following:

 

-           The specific medical treatment is contrary to the teaching and tenets of the individual's religion.

 

-           The individual is unable to afford prescribed treatment that he or she is willing to accept, but for which free community resources are unavailable.

 

-           The treatment carries a high degree of risk because of the enormity or unusual nature of the procedure.

 

In this regard, most health insurance plans and Medicare do not defray the expense of treatment for obesity.  Thus, an individual who might benefit from behavioral or drug therapy might not be able to afford it.  Also, because not enough is known about the long-term effects of medications used to treat obesity, some people may be reluctant to use them due to the potential risk.

 

Because of the risks and potential side effects of surgery for obesity, do not find that an individual has failed to follow prescribed treatment for obesity when the prescribed treatment is surgery.

 

(SSR No. 00-03p; POMS DI 24570.001B.)

1304-1

 

 

The  ALJ has the duty to fully and fairly develop the record and to assure that the applicant's interests are considered "...even when the claimant is represented by counsel."  (Brown v. Heckler (1983) 713 F.2d 441, 443; Smolen v. Chater (1996) 80 F. 3d 1273)

1304-1A

 

 

The 9th Circuit Court of Appeals has required that the ALJ in a social security case develop the record, even when the claimant is represented.  There is a heightened duty when the claimant is mentally ill.  As the Court said:

 

“The ALJ in a social security case has an independent ’duty to fully and fairly develop the record and to assure that the claimant's interests are considered.’  Smolen, 80 F.3d at 1288 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). This duty extends to the represented as well as to the unrepresented claimant. Id. When the claimant is unrepresented, however, the AU must be especially diligent in exploring for all the relevant facts. Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978). In this case, Tonapetyan was represented, but by a lay person rather than an attorney. The ALJ's duty to develop the record fully is also heightened where the claimant may be mentally ill and thus unable to protect her own interests. Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir.1992). Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to ‘conduct an appropriate inquiry.’  Smolen, 80 F.3d at 1288; Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998). The ALJ may discharge this duty in several ways, including: subpoenaing the claimants physicians, submitting questions to the claimants physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record. Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998); Smolen, 80 F.3d at 1288.”

 

(Tonapetyan v. Halter (2001) 242 F. 3d 1144, 1150)

1304-2

 

 

An ALJ must give clear reasons for rejecting the credibility of pain testimony, supported by the record. Medication side effects, like pain, are idiosyncratic phenomena. To reject the existence of described severity of side effects, the ALJ just give clear reasons, supported by the record.  (Varney v. Secretary (I) (1988) 846 F.2d 581, 584-586)

1304-3

 

 

An ALJ is not bound by the uncontroverted opinions of the applicant's physicians on the ultimate issue of disability, but cannot reject them without presenting clear and convincing reasons for doing so. Neither personal observations by the ALJ at the hearing nor the inability of the reporting physicians to support their opinions with objective findings constitutes the required clear and convincing reasons to reject uncontroverted opinions. The ALJ's personal observations are especially inadequate to rebut expert opinions in a case involving psychiatric impairment.  (Montijo v. Secretary (1984) 729 F.2d 599, 601-602)

1304-4

 

 

Where the evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld. In making findings, the ALJ is entitled to draw inferences logically flowing from the evidence. Sample v. Schweiker (1982) 694 F.2d 639.

1304-5

 

 

Vocational conclusions reached by an ALJ, without testimony or evidence from a vocational expert, represented an improper reliance upon information outside the record, deprived the applicant of an opportunity to cross-examine or rebut, and lacked sufficient support to constitute substantial evidence. Burkhart v. Bowen (1988) 856 F.2d 1335.

1304-6

 

 

It was reversible error when the ALJ denied the disability claim based on the fact there were no limitations which prevented the claimant from performing his past work when the ALJ failed to find that the claimant's impairment did not meet or equal a listing. (Fanning v. Bowen (1987) 827 F.2d 631.)

1304-7

 

 

When resolving a conflict between the opinions of a treating physician and an examining physician, the opinion of the treating physician is entitled to greater weight, and may be rejected only on the basis of findings setting forth specific, legitimate reasons based on substantial evidence in the record.  (Sprague v. Bowen (1987) 812 F.2d 1226, 1230)  The opinions of treating physicians are entitled to greater weight than "one-shot" consultants since the treating doctor is "employed to cure" and has a greater opportunity to observe and know the applicant as an individual.  (Murray v. Heckler (1983) 722 P.2d 499, 502)

1304-8

 

 

Where a treating physician states an opinion which is uncontradicted and which rests on substantial medical evidence, such opinion shall not be disregarded by an Administrative Law Judge (ALJ) unless clear and convincing reasons for doing so are set forth.  An ALJ must accept the treating physician's opinion in the absence of clear and convincing reasons to reject it.  (Davis v. Heckler, (1989) 868 F.2d 323; Lester v. Chater (1996) 81 F. 3d 821; Magallanes v. Bowen (1989) 881 F. 2d 747)

 

When the ALJ had pointed to specific examples where the treating physician's reported level of the claimant's impairment was not consistent with the claimant's described symptoms, and the ALJ had also pointed to inconsistencies between the reports of the treating physicians, his detailed and thorough summary of the facts and conflicting clinical evidence entitled him to reject the treating physicians' opinions.  (Morgan v. Commisioner (1999) 169 F. 3d 595)

1304-9

 

 

In general, the extent to which an individual's statements about symptoms can be relied upon as probative evidence in determining whether the individual is disabled depends on the credibility of the statements.  When evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual's statements.

 

The finding on the credibility of the individual's statements cannot be based on intangible or intuitive notions about an individual's credibility.  The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision.  It is not sufficient to make a conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible."  It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms.  The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.  This documentation is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision.

 

The adjudicator may find all, only some, or none of an individual's allegations to be credible.  The adjudicator may also find an individual's statements, such as statements about the extent of functional limitations or restrictions due to pain or other symptoms, to be credible to a certain degree.  For example, an adjudicator may find credible an individual's statement that the abilities to lift and carry are affected by symptoms, but find only partially credible the individual's statements as to the extent of the functional limitations or restrictions due to symptoms; e.g., that the individual's abilities to lift and carry are compromised, but not to the degree alleged.

 

A finding that an individual's statements are not credible, or not wholly credible, is not in itself sufficient to establish that the individual is not disabled.  All of the evidence in the case record, including the individual's statements, must be considered before a conclusion can be made about disability.

 

Assessment of the credibility of an individual's statements must be based on a consideration of all of the evidence in the case record.  This includes:

 

The medical signs and laboratory findings.

 

Diagnosis, prognosis, and other medical opinions.

 

Statements and reports from the individual and from treating or examining physicians or psychologists and other persons about the individual's medical history, treatment and response, prior work record and efforts to work, daily activities, and other information concerning the individual's symptoms and how the symptoms affect the individual's ability to work.

 

The adjudicator must also consider any observations about the individual recorded by SSA employees during interviews, whether in person or by telephone.  When the individual attends an administrative proceeding, the adjudicator may also consider personal observations of the individual as part of the overall evaluation of the credibility of the individual's statements.