Appeal an Unfavorable Decision Based on Common Errors in SSD Law

When an Administrative Law Judge (ALJ) denies the disability claim at the hearing level, as the Social Security Disability representative, you must decide if the case is suitable for appeal. Some cases will be appealed to the District Court while others must be appealed to the Appeals Council. Wherever the appeal is made, it is highly beneficial when the ALJ’s decision and/or the Appeals Court Order is based on error of law. Let’s examine several common errors that are made at each step of the 5-Step Sequential Evaluation that may help your appeal.

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Appealable Errors of SSD Law

Step 1

  • The ALJ considered monies posted after the AOD that should have been eliminated as SGA, such as short- and long-term disability benefit payments, and issued a partially favorable decision

  • The ALJ considered bonuses earned prior to the AOD but posted after the AOD as SGA, issuing a partially favorable decision based on when bonuses were posted rather than earned (see Title II)

  • The ALJ denied or issued a partially favorable decision based solely on receiving unemployment benefit payments

Step 2

  • The ALJ did not realize SGA was part of an unsuccessful work attempt and denied the claim at Step 2 for not meeting the durational requirement

  • Obesity was not considered in conjunction with a respiratory, cardiovascular, or musculoskeletal impairment

  • The ALJ’s finding of a nonsevere impairment is not supported by substantial evidence

Step 3

  • The ALJ failed to realize the Listing used for the Step 3 argument is allowed under SSA policy

  • For example, Listing 11.02 involves epilepsy and is also used for a non-listed impairment of migraine

  • The ALJ missed positive straight leg raise tests for a severe back impairment

  • The ALJ gave less weight to a treating source opinion that opined an individual meets a listing and is supported by the medical evidence of record; however, the ALJ gave a nonexamining source opinion more weight that is not consistent with the evidence

Step 3.5/RFC

  • RFC does not reflect the severe mental impairment

  • The ALJ’s decision does not reflect that a third-party statement on functional limitations (found usually in the file’s E section)

  • Established RFC in the decision is more restrictive than the one posed to the VE

Step 4

  • Work that was not performed at the SGA level, or not performed long enough to be learned at the skill level, or not performed within the last 15 years was counted as PRW and denied on that basis

  • VE testified that reaching overhead is outside of the DOT (reaching is reaching in all directions as indicated by DOT/SCO) and found the individual able to perform PRW or other work

  • The ALJ did not clarify inconsistencies in the VE testimony for an advanced age individual

Step 5

  • The ALJ did not apply the borderline age policy when applicable; the decision would have been favorable otherwise

  • The ALJ applied incorrect Medical-Vocational Rules for two different age categories; the decision would have been favorable otherwise

  • RFC includes numerous nonexertional limitations without VE testimony or interrogatory

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