EVIDENTIARY STANDARDS of the BENCH

Evidentiary Standards of the Bench (legal speak), or

Proof Required to Win Your Social Security Disability Case

By Charles W. Forsythe at The Forsythe Firm

The term "evidentiary standards" refers to the evidence needed to prevail in court. Here, we're talking about the standard of proof needed to be approved for Social Security disability (SSDI).

SSDI operates according to a strict code, using the 20 Code of Federal Regulations and various other rules, regulations, and even past court decisions.

The burden of proof is on the claimant. This means that the individual applying for SSDI must prove that he/she IS disabled. The Social Security Administration is not required to prove that the claimant is NOT disabled.

Social Security will consider several factors to decide whether the claimant meets its rules for disability. These factors include:

• The claimant's age

• Education

• Past Relevant Work (for the last 5 years)

• Transferrable Skills and

• Residual Functional Capacity (RFC)

Assigning a Residual Functional Capacity (RFC) is where medical records are important. Most SSDI claims will be decided based on the claimant's ability to function in work-like activities, such as sitting, standing, walking, pushing-pulling, lifting/carrying, reaching, concentration, memory, etc. Usually, it comes down to whether the claimant can still perform either Sedentary or Light work. It is up to the claimant to prove to Social Security's satisfaction that function has been so reduced by a medical or mental impairment that full-time work is impossible. This must be accomplished by direct medical evidence.

There are 2 types of medical evidence:

(1) OBJECTIVE MEDICAL EVIDENCE

This includes evidence from examinations, laboratory reports, imaging studies or various other medical tests. This subjective evidence will come from treating physicians, counselors, clinics or other professional caregivers. Objective medical evidence if often a basis for proof of disability.

II. SUBJECTIVE EVIDENCE

Subjective evidence includes medical opinions, allegations made by the claimant or allegations made by third parties. Subjective evidence alone, while it will be considered, is not enough for approval.

THE BIG QUESTIONS THAT WILL BE DETERMINED BY EVIDENCE:

A. Does the evidence demonstrate that the claimant cannot perform any of the work he/she has performed during the past 5 year period? (This work is called "Past Relevant Work." Work is relevant if it was full-time (Substantial Gainful Activity) and was performed long enough to learn how to perform the work. The claimant must be unable to perform this work for a continuous period of at least 1 year.

B. If the claimant cannot perform Past Relevant Work, is he/she able to perform ANY OTHER full-time work which exists within the national economy, based on age, education and present residual functional capacity? If the answer is Yes, there is a high probability that the claim will be denied.

If the claimant is age 50 or above, Medical Vocational Guidelines (Grid Rules) might help win the case if the claimant cannot perform past relevant work. The Grid Rules must be interpreted and applied correctly.

BEST WAY TO APPROACH SOCIAL SECURITY DISABILITY

You probably see that being approved for Social Security disability is a technical and difficult proposition. The best way to approach it is with the help of an experienced Social Security disability lawyer. He or she will know the 20 Code of Federal Regulations, the standards of evidence required and how to obtain acceptable evidence to PROVE your case. Your lawyer will also now the rules and procedures of the Social Security Administration. He/she will know how to meet deadlines, prepare and submit documents and how to handle appeals should your application be denied.**

** Almost 8 out of 10 disability applications are denied at the first level. The others will require one to three appeals to be approved, if they ever are approved. An agency of the US Government has stated that the odds or being approved for disability are about 3 times higher if you use an attorney or qualified advocate.

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For a free consultation and assistance with a Social Security disability claim or appeal, contact THE FORSYTHE FIRM in Huntsville. We will never charge you a fee of any kind until your claim has been approved and you receive your past due benefits (back payments). Call us at (256) 799-0297.