Often overlooked sources for useful, even vital, information
Charles L. Martin
My aim in this presentation is to encourage creative thinking in proving Social Security cases. It has occasionally been observed that my approach to proving claims is “unusual.” Some have been less kind in their descriptions of my style. There are only two things needed for you, too, to experience the groans and rolling of eyes I enjoy during my presentation of evidence. Try it, you will like it.
The two things on which my particular style depend are an unflagging belief that my client knows better than anyone else whether he can work (even if he does not know why), and a stubborn refusal to accept that proof of a fact is impossible.
I have put together a list of ideas for sources of information which are not “ordinary” sources of proof of disability. Before getting to the list, though, I think it is helpful to go back to the source. I learned this in law school, when one of my law professors made the observation that it was shocking how many lawyers file suits without reading the law on which the suit is based. As he put it, you can learn a lot of law by reading the law.
For purposes of this talk, the best single source of ideas for proof of disability can be found in the regulations. Everyone is familiar with the “acceptable medical sources” defined in the regulations. They are our primary sources of proof. But, the regulation goes on to identify other sources which can be more helpful than might be apparent:
(d) Other sources. In addition to evidence from the acceptable medical sources listed in paragraph (a) of this section, we may also use evidence from other sources to show the severity of your impairment(s) and how it affects your ability to work. Other sources include, but are not limited to–
- Medical sources not listed in paragraph (a) of this section (for example, nurse-practitioners, physicians’ assistants, naturopaths, chiropractors, audiologists, and therapists);
- Educational personnel (for example, school teachers, counselors, early intervention team members, developmental center workers, and daycare center workers);
- Public and private social welfare agency personnel; and
- Other non-medical sources (for example, spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy).
20 CFR § 404.1513.
If you read this regulation carefully, it says only the acceptable medical sources can identify the existence of a medically-determinable impairment, but the other sources listed can be used to show “the severity of your impairment(s) and how it affects your ability to work.” So, why is it that ALJ’s seem to believe you have not provided evidence of the claimant’s limitations if no physician says what the claimant’s limitations are? Maybe it is because the “Other sources” are too seldom offered as proof of the claimant’s limitations.
II. SCHOOL RECORDS
My original intent was to talk only about school records. I may still end up talking only about them, even though I have listed other sometimes-helpful sources. But school records have a very important place in a discussion such as this, because they are one of the most under-utilized sources of information
I request school records in virtually every case. They usually cost only a dollar or two, so the cost of obtaining them is low enough that little is lost if they produce nothing helpful. But they often provide more help that you would suspect.
What do they show? Many things.
A. Test scores
They may tell me that my client repeated grades, failed classes or grades, or had excessive absences. This can move a claimant from the “limited” to the “illiterate” category. Occasionally there will be an IQ score which may justify a §12.05 c argument (and probably spawn a consultative psychological evaluation). On one occasion I obtained a college transcript showing an IQ score of 126 and straight “A’s” for a client who had been tested by the Administration’s psychologist at and IQ of 86. While an IQ of 86 is not necessary disabling, a decline of 40 points was very helpful in convincing the judge that the claimant did indeed have a brain injury, as I had unsuccessfully argued before getting the school records.
I recently used school records to show that a claimant who had repeated three grades had never attended beyond the 7th grade, even though he correctly stated he has ten years of school. He neglected to mention his three repeated years. He also failed to mention that he did not pass a single subject (save physical education) the second time through the 7th grade, or that he had only made a passing grade in English one year, in the second grade. Nor did he point out that he had missed over 30 days in his tenth year. Pointing out these items to the ALJ helped justify a psychological evaluation, which demonstrated that he met §12.05 c.
C. Course names
The names of courses in the school record will often show the claimant was in “basic,” “remedial,” or special education classes.
D. Special education records
When you request school records, you should specifically request special education records. Often, they are not provided when you request “all records.”
1. May require separate request
Special education records often contain counseling notes, psychological exams, and other helpful information. Because some of the information is of a psychiatric nature, a separate release form is sometimes required.
E. School psychologists
In disabled child’s cases, check to see if the child’s school or former school had testing done by a psychologist. With young children the testing may simply be informal observation with little documentation, but it may lead you to other evidence or a potential witness.
F. School counselors/advisors
G. School administrators
H. Social workers
Social Workers are professional bleeding hearts. You may get a good statement from a welfare, AFDC or food stamp case worker.
I. Juvenile court
I once found that my pregnant client had 6 children removed from her custody due to neglect. The juvenile court was developing information to justify taking the new child, born prematurely when my client was smoking crack with a client of her prostitution proprietorship, which also helped show that she was not capable of holding a job.
III. YOUR CLIENT
A. Take a complete history
One of the most important requirements for developing creative proof is that you understand your client well. The history you take should be as complete as possible.
B. Go back far enough-often to childhood
Often a client will ask if I need to know about treatment which took place in the distant past. My reply is that I want to know about all sources of information for every condition which is still bothering the client, regardless of how old the treatment may be. I may not obtain all of it, but I want to know it exists just in case.
C. Show conditions the client doesn’t have
1. Always ask about psychological symptoms
You may safely assume that all your clients suffer from mental impairments. If they did not have one to start with, the certainly will have picked one up through their contact with the Social Security Administration or with their representative. Knowing what their symptoms are may lead you to unanticipated evidence. For example, I have submitted a written statement from a manager of a Chinese laundromat that my client had recently chased him about his business while hitting him over the head with a broom handle. I might never have found out about this hobby had I not inquired into the client’s ability to relate appropriately to strangers.
You may not safely assume that your claimant’s education is as he described it. You can often go down one grade simply by asking the claimant who said he “completed” the 10th grade “Did you finish the entire year and pass all your subjects?” Often further inquiry into the nature of their education will help demonstrate a limited education, IQ, or other helpful fact (Regular classes, or Special Ed? Vocational program?).
D. Videotaped statement at home of agoraphobic
E. Videotape of waiting room behavior
F. Photos of home
IV. MEDICAL SOURCES
A. Sickness on vacation?
For some reason a large number of my clients only get so sick they need treatment at a hospital when they are on vacation. While you should recognize the pitfall of introducing evidence that your client who is unable to stand more than 5 minutes or sit more than 30 minutes without laying down for two hours ran the Boston Marathon, or drove non-stop 3200 miles from Miami to Seattle, you should consider the possibility that he may have been arrested for diabetic ketoacidosis mistaken for DUI in four states while driving his family to Disneyland, or that she was taken from jail to a hospital after assaulting a police officer in Minneapolis during an epileptic seizure.
B. Ambulance services
With some impairments it is common for friends and family to call “the paramedics” when the claimant does not want or need to be taken to the hospital. Examples include those with asthma, epilepsy, and occasionally diabetes mellitus.
C. Prison or jail treatment records
Claimants who have been incarcerated often have medical treatment in prison. This includes continuation of treatment for chronic impairments, court-ordered sanity evaluations, defense purchased evaluations, etc. Occasionally you can get a defense attorney to obtain a psychological evaluation.
D. Pharmacy records
Just as hospital pharmacy records can be useful, private pharmacies keep records of drugs dispensed. These records can lead to treatment records previously unknown to you, and, more often, can help support credibility of pain complaints.
E. Military records
If you think going to the dentist is fun, you are going to like this one. If your client was in the military, question him closely regarding any medical treatment in the service, and especially the reason for the discharge. An early discharge on general grounds may indicate a mental impairment. It can be difficult to obtain these records, but it can be worth the effort. Start by writing the National Personnel Records Center, Military Personnel Records, 9700 Page Boulevard, St. Louis, MO 63132.
F. Emergency room records
As with special education records, these may require a special request.
V. WORK SOURCES
A. State unemployment office
One of my biggest surprises in my search for the Never-Never land of evidence was the discovery that the state unemployment office had information which could demonstrate that my client could not work. An off-hand remark by my client that he had taken some test (a “Gatby” or some such) at the unemployment office sent me on a frantic search, since I had nothing on which to hang my hat and the hearing was the next day. A call to the Georgia Department of Labor revealed that they routinely administer a test created by or for the United States Employment Service called the General Aptitude Test Battery (GATB, or “Gatby”). This is a simple test of basic vocational skills to assist the unemployment counselor in finding some job to recommend to the client. On my request, they FAXed the test results to me. I had to call them for an explanation, which they willingly gave. On further inquiry, I discovered that the assistant director of the Department of Labor would be willing (glad was too much to hope for) to testify at my hearing the next morning to de-code the test results. After this person testified that the test results demonstrated that my client who was already limited to sedentary work would be unsuitable for jobs requiring manual dexterity (he was in the 15th percentile), I had little trouble getting the Vocational Expert to testify that there were not a significant number of jobs he could do.
B. Former employers, co-workers
Affidavits, statements or testimony of people who worked with the claimant may demonstrate the severity of
symptoms, the effect they have on the claimant, the motivation of the claimant to persist in spite of pain, or that co-workers hid from supervisors the fact that she was incapable of doing the job (best to try to get former employees for this one). Such statements may be used to rebut the presumption that work was substantial gainful activity. In a case where there is a questionable brain injury, descriptions of the way the claimant was while still working may be useful. Time cards from employers can also show excess absences.
VI. SOCIAL FUNCTIONING
A. Arrest record
A long and colorful history of entanglements with the law may demonstrate the severity of an alcohol addiction, a personality disorder or other problems. This can usually be obtained for a small fee from a local law enforcement agency by the claimant.
Family members are obvious witnesses to the claimant’s pain-related limitations, seizure or asthma attack frequency, alcoholism, and a multitude of other impairments which are diagnosed by treating physicians but where the physician cannot document the frequency or severity needed to meet a listing. Having the family member begin making contemporaneous records from the first contact with you helps improve their credibility with the Administrative Law Judge.
VII. C. OTHER SOURCES
The non-medical sources of evidence that will help are limited only by your imagination. Often you can imagine what obstacles your client faces in her everyday life and can discover ways of proving the effects of the impairment with evidence not apparent at first.
A. Advocacy and Support groups
As mentioned above under medical research, advocacy and support groups can be very helpful in providing you with or leading you to medical research. Members of these groups may also be able to provide testimony of their observations of the claimant. They are generally educated about the impairment, so they will be better able to give observations that support specific symptoms associated with the impairment.
B. Shelters (Battered women’s, homeless, etc.)
It is a long shot, but battered-women’s shelters and other shelters may have social workers, counselors, or others who can give statements regarding the claimant’s condition and symptoms.
C. Minister or Rabbi
People who are suffering often turn to their spiritual community for emotional support, and such a community may provide witnesses to the claimant’s symptoms. Often a minister or rabbi will be trained in counseling, and can describe specific symptoms of depression, etc.
D. Insurance company records
Insurance companies who pay short or long term disability benefits have a great interest in having their insureds receive Social Security benefits. They are generally happy to provide you with copies of the medical reports which lead them to begin paying disability benefits, and sometimes are willing to purchase new evidence.
E. Other agency decisions
Decisions by other agencies, such as the Veterans Administration, that a claimant is disabled may be given some weight by and Administrative Law Judge, and almost certainly will by a federal court in the event of an appeal.
In 30 minutes, I can hardly discuss an exhaustive list of possible sources of probative evidence. That was not my goal today. My intent is to foster creative thinking by giving you at least one idea you have not had before. I fully expect that each person in this workshop could also tell me one idea I have never used. Next conference, let’s trade places.