Florida Bar Rule regulating contingent fees

http://www.floridabar.org/divexe/rrtfb.nsf/FV/A8644F215162F9DE85257164004C0429
(f) Contingent Fees. As to contingent fees:
(1) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subdivision (f)(3) or by law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(2) Every lawyer who accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in any action, claim, or proceeding whereby the lawyer’s compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only where such fee arrangement is reduced to a written contract, signed by the client, and by a lawyer for the lawyer or for the law firm representing the client. No lawyer or firm may participate in the fee without the consent of the client in writing. Each participating lawyer or law firm shall sign the contract with the client and shall agree to assume joint legal responsibility to the client for the performance of the services in question as if each were partners of the other lawyer or law firm involved. The client shall be furnished with a copy of the signed contract and any subsequent notices or consents. All provisions of this rule shall apply to such fee contracts.

(3) A lawyer shall not enter into an arrangement for, charge, or collect:(A) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

(B) a contingent fee for representing a defendant in a criminal case.(4) A lawyer who enters into an arrangement for, charges, or collects any fee in an action or claim for personal injury or for property damages or for death or loss of services resulting from personal injuries based upon tortious conduct of another, including products liability claims, whereby the compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only under the following requirements:(A) The contract shall contain the following provisions:(i) “The undersigned client has, before signing this contract, received and read the statement of client’s rights and understands each of the rights set forth therein. The undersigned client has signed the statement and received a signed copy to refer to while being represented by the undersigned attorney(s).”

(ii) “This contract may be cancelled by written notification to the attorney at any time within 3 business days of the date the contract was signed, as shown below, and if cancelled the client shall not be obligated to pay any fees to the attorney for the work performed during that time. If the attorney has advanced funds to others in representation of the client, the attorney is entitled to be reimbursed for such amounts as the attorney has reasonably advanced on behalf of the client.”(B) The contract for representation of a client in a matter set forth in subdivision (f)(4) may provide for a contingent fee arrangement as agreed upon by the client and the lawyer, except as limited by the following provisions:(i) Without prior court approval as specified below, any contingent fee that exceeds the following standards shall be presumed, unless rebutted, to be clearly excessive:a. Before the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action:1. 33 1/3% of any recovery up to $1 million; plus
2. 30% of any portion of the recovery between $1 million and $2 million; plus
3. 20% of any portion of the recovery exceeding $2 million.b. After the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action, through the entry of judgment:1. 40% of any recovery up to $1 million; plus
2. 30% of any portion of the recovery between $1 million and $2 million; plus
3. 20% of any portion of the recovery exceeding $2 million.c. If all defendants admit liability at the time of filing their answers and request a trial only on damages:1. 33 1/3% of any recovery up to $1 million; plus
2. 20% of any portion of the recovery between $1 million and $2 million; plus
3. 15% of any portion of the recovery exceeding $2 million.d. An additional 5% of any recovery after institution of any appellate proceeding is filed or post-judgment relief or action is required for recovery on the judgment.(ii) If any client is unable to obtain an attorney of the client’s choice because of the limitations set forth in subdivision (f)(4)(B)(i), the client may petition the court in which the matter would be filed, if litigation is necessary, or if such court will not accept jurisdiction for the fee division, the circuit court wherein the cause of action arose, for approval of any fee contract between the client and an attorney of the client’s choosing. Such authorization shall be given if the court determines the client has a complete understanding of the client’s rights and the terms of the proposed contract. The application for authorization of such a contract can be filed as a separate proceeding before suit or simultaneously with the filing of a complaint. Proceedings thereon may occur before service on the defendant and this aspect of the file may be sealed. A petition under this subdivision shall contain a certificate showing service on the client and, if the petition is denied, a copy of the petition and order denying the petition shall be served on The Florida Bar in Tallahassee by the member of the bar who filed the petition. Authorization of such a contract shall not bar subsequent inquiry as to whether the fee actually claimed or charged is clearly excessive under subdivisions (a) and (b).

(iii) Subject to the provisions of 4-1.5(f)(4)(B)(i) and (ii) a lawyer who enters into an arrangement for, charges, or collects any fee in an action or claim for medical liability whereby the compensation is dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall provide the language of article I, section 26 of the Florida Constitution to the client in writing and shall orally inform the client that:a. Unless waived, in any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000 of all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000, exclusive of reasonable and customary costs and regardless of the number of defendants.

b. If a lawyer chooses not to accept the representation of a client under the terms of article I, section 26 of the Florida Constitution, the lawyer shall advise the client, both orally and in writing of alternative terms, if any, under which the lawyer would accept the representation of the client, as well as the client’s right to seek representation by another lawyer willing to accept the representation under the terms of article I, section 26 of the Florida Constitution, or a lawyer willing to accept the representation on a fee basis that is not contingent.

c. If any client desires to waive any rights under article I, section 26 of the Florida Constitution in order to obtain a lawyer of the client’s choice, a client may do so by waiving such rights in writing, under oath, and in the form provided in this rule. The lawyer shall provide each client a copy of the written waiver and shall afford each client a full and complete opportunity to understand the rights being waived as set forth in the waiver. A copy of the waiver, signed by each client and lawyer, shall be given to each client to retain, and the lawyer shall keep a copy in the lawyer’s file pertaining to the client. The waiver shall be retained by the lawyer with the written fee contract and closing statement under the same conditions and requirements provided in 4-1.5(f)(5).
WAIVER OF THE CONSTITUTIONAL RIGHT PROVIDED IN
ARTICLE I, SECTION 26 OF THE FLORIDA CONSTITUTION

On November 2, 2004, voters in the State of Florida approved The Medical Liability Claimant’s Compensation Amendment that was identified as Amendment 3 on the ballot. The amendment is set forth below:

The Florida Constitution Article I, Section 26 is created to read “Claimant’s right to fair compensation.” In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000, exclusive of reasonable and customary costs and regardless of the number of defendants. This provision is self-executing and does not require implementing legislation.
The undersigned client understands and acknowledges that (initial each provision):

_____ I have been advised that signing this waiver releases an important constitutional right; and

_____ I have been advised that I may consult with separate counsel before signing this waiver; and that I may request a hearing before a judge to further explain this waiver; and

_____ By signing this waiver I agree to an increase in the attorney fee that might otherwise be owed if the constitutional provision listed above is not waived. Without prior court approval, the increased fee that I agree to may be up to the maximum contingency fee percentages set forth in Rule Regulating The Florida Bar 4-1.5(f)(4)(B)(i). Depending on the circumstances of my case, the maximum agreed upon fee may range from 33 1/3% to 40% of any recovery up to $1 million; plus 20% to 30% of any portion of the recovery between $1 million and $2 million; plus 15% to 20% of any recovery exceeding $2 million; and

_____ I have three (3) business days following execution of this waiver in which to cancel this waiver; and

_____ I wish to engage the legal services of the lawyers or law firms listed below in an action or claim for medical liability the fee for which is contingent in whole or in part upon the successful prosecution or settlement thereof, but I am unable to do so because of the provisions of the constitutional limitation set forth above. In consideration of the lawyers’ or law firms’ agreements to represent me and my desire to employ the lawyers or law firms listed below, I hereby knowingly, willingly, and voluntarily waive any and all rights and privileges that I may have under the constitutional provision set forth above, as apply to the contingency fee agreement only. Specifically, I waive the percentage restrictions that are the subject of the constitutional provision and confirm the fee percentages set forth in the contingency fee agreement; and

____ I have selected the lawyers or law firms listed below as my counsel of choice in this matter and would not be able to engage their services without this waiver; and I expressly state that this waiver is made freely and voluntarily, with full knowledge of its terms, and that all questions have been answered to my satisfaction.
ACKNOWLEDGMENT BY CLIENT FOR PRESENTATION TO THE COURT

The undersigned client hereby acknowledges, under oath, the following:

I have read and understand this entire waiver of my rights under the constitutional provision set forth above.

I am not under the influence of any substance, drug, or condition (physical, mental, or emotional) that interferes with my understanding of this entire waiver in which I am entering and all the consequences thereof.

I have entered into and signed this waiver freely and voluntarily.

I authorize my lawyers or law firms listed below to present this waiver to the appropriate court, if required for purposes of approval of the contingency fee agreement. Unless the court requires my attendance at a hearing for that purpose, my lawyers or law firms are authorized to provide this waiver to the court for its consideration without my presence.

Dated this ________ day of ________________________, ____.

By: _______________________________________
CLIENT

Sworn to and subscribed before me this _____ day of _______________, _______ by _______________________________, who is personally known to me, or has produced the following identification: ___________________________________.

_______________________________________
Notary Public

My Commission Expires:

Dated this ______ day of __________________________, ____.

By: ______________________________________
ATTORNEY
(C) Before a lawyer enters into a contingent fee contract for representation of a client in a matter set forth in this rule, the lawyer shall provide the client with a copy of the statement of client’s rights and shall afford the client a full and complete opportunity to understand each of the rights as set forth therein. A copy of the statement, signed by both the client and the lawyer, shall be given to the client to retain and the lawyer shall keep a copy in the client’s file. The statement shall be retained by the lawyer with the written fee contract and closing statement under the same conditions and requirements as subdivision (f)(5).

(D) As to lawyers not in the same firm, a division of any fee within subdivision (f)(4) shall be on the following basis:(i) To the lawyer assuming primary responsibility for the legal services on behalf of the client, a minimum of 75% of the total fee.(ii) To the lawyer assuming secondary responsibility for the legal services on behalf of the client, a maximum of 25% of the total fee. Any fee in excess of 25% shall be presumed to be clearly excessive.

(iii) The 25% limitation shall not apply to those cases in which 2 or more lawyers or firms accept substantially equal active participation in the providing of legal services. In such circumstances counsel shall apply to the court in which the matter would be filed, if litigation is necessary, or if such court will not accept jurisdiction for the fee division, the circuit court wherein the cause of action arose, for authorization of the fee division in excess of 25%, based upon a sworn petition signed by all counsel that shall disclose in detail those services to be performed. The application for authorization of such a contract may be filed as a separate proceeding before suit or simultaneously with the filing of a complaint, or within 10 days of execution of a contract for division of fees when new counsel is engaged. Proceedings thereon may occur before service of process on any party and this aspect of the file may be sealed. Authorization of such contract shall not bar subsequent inquiry as to whether the fee actually claimed or charged is clearly excessive. An application under this subdivision shall contain a certificate showing service on the client and, if the application is denied, a copy of the petition and order denying the petition shall be served on The Florida Bar in Tallahassee by the member of the bar who filed the petition. Counsel may proceed with representation of the client pending court approval.

(iv) The percentages required by this subdivision shall be applicable after deduction of any fee payable to separate counsel retained especially for appellate purposes.(5) In the event there is a recovery, upon the conclusion of the representation, the lawyer shall prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received by each participating lawyer or law firm. A copy of the closing statement shall be executed by all participating lawyers, as well as the client, and each shall receive a copy. Each participating lawyer shall retain a copy of the written fee contract and closing statement for 6 years after execution of the closing statement. Any contingent fee contract and closing statement shall be available for inspection at reasonable times by the client, by any other person upon judicial order, or by the appropriate disciplinary agency.

(6) In cases in which the client is to receive a recovery that will be paid to the client on a future structured or periodic basis, the contingent fee percentage shall be calculated only on the cost of the structured verdict or settlement or, if the cost is unknown, on the present money value of the structured verdict or settlement, whichever is less. If the damages and the fee are to be paid out over the long term future schedule, this limitation does not apply. No attorney may negotiate separately with the defendant for that attorney’s fee in a structured verdict or settlement when separate negotiations would place the attorney in a position of conflict.
(g) Division of Fees Between Lawyers in Different Firms. Subject to the provisions of subdivision (f)(4)(D), a division of fee between lawyers who are not in the same firm may be made only if the total fee is reasonable and:
(1) the division is in proportion to the services performed by each lawyer; or

(2) by written agreement with the client:

(A) each lawyer assumes joint legal responsibility for the representation and agrees to be available for consultation with the client; and

(B) the agreement fully discloses that a division of fees will be made and the basis upon which the division of fees will be made.
(h) Credit Plans. A lawyer or law firm may accept payment under a credit plan. No higher fee shall be charged and no additional charge shall be imposed by reason of a lawyer’s or law firm’s participation in a credit plan.

(i) Arbitration Clauses. A lawyer shall not make an agreement with a potential client prospectively providing for mandatory arbitration of fee disputes without first advising that person in writing that the potential client should consider obtaining independent legal advice as to the advisability of entering into an agreement containing such mandatory arbitration provisions. A lawyer shall not make an agreement containing such mandatory arbitration provisions unless the agreement contains the following language in bold print:

NOTICE: This agreement contains provisions requiring arbitration of fee disputes. Before you sign this agreement you should consider consulting with another lawyer about the advisability of making an agreement with mandatory arbitration requirements. Arbitration proceedings are ways to resolve disputes without use of the court system. By entering into agreements that require arbitration as the way to resolve fee disputes, you give up (waive) your right to go to court to resolve those disputes by a judge or jury. These are important rights that should not be given up without careful consideration.

STATEMENT OF CLIENT’S RIGHTS
FOR CONTINGENCY FEES

Before you, the prospective client, arrange a contingent fee agreement with a lawyer, you should understand this statement of your rights as a client. This statement is not a part of the actual contract between you and your lawyer, but, as a prospective client, you should be aware of these rights:

1. There is no legal requirement that a lawyer charge a client a set fee or a percentage of money recovered in a case. You, the client, have the right to talk with your lawyer about the proposed fee and to bargain about the rate or percentage as in any other contract. If you do not reach an agreement with 1 lawyer you may talk with other lawyers.

2. Any contingent fee contract must be in writing and you have 3 business days to reconsider the contract. You may cancel the contract without any reason if you notify your lawyer in writing within 3 business days of signing the contract. If you withdraw from the contract within the first 3 business days, you do not owe the lawyer a fee although you may be responsible for the lawyer’s actual costs during that time. If your lawyer begins to represent you, your lawyer may not withdraw from the case without giving you notice, delivering necessary papers to you, and allowing you time to employ another lawyer. Often, your lawyer must obtain court approval before withdrawing from a case. If you discharge your lawyer without good cause after the 3-day period, you may have to pay a fee for work the lawyer has done.

3. Before hiring a lawyer, you, the client, have the right to know about the lawyer’s education, training, and experience. If you ask, the lawyer should tell you specifically about the lawyer’s actual experience dealing with cases similar to yours. If you ask, the lawyer should provide information about special training or knowledge and give you this information in writing if you request it.

4. Before signing a contingent fee contract with you, a lawyer must advise you whether the lawyer intends to handle your case alone or whether other lawyers will be helping with the case. If your lawyer intends to refer the case to other lawyers, the lawyer should tell you what kind of fee sharing arrangement will be made with the other lawyers. If lawyers from different law firms will represent you, at least 1 lawyer from each law firm must sign the contingent fee contract.

5. If your lawyer intends to refer your case to another lawyer or counsel with other lawyers, your lawyer should tell you about that at the beginning. If your lawyer takes the case and later decides to refer it to another lawyer or to associate with other lawyers, you should sign a new contract that includes the new lawyers. You, the client, also have the right to consult with each lawyer working on your case and each lawyer is legally responsible to represent your interests and is legally responsible for the acts of the other lawyers involved in the case.

6. You, the client, have the right to know in advance how you will need to pay the expenses and the legal fees at the end of the case. If you pay a deposit in advance for costs, you may ask reasonable questions about how the money will be or has been spent and how much of it remains unspent. Your lawyer should give a reasonable estimate about future necessary costs. If your lawyer agrees to lend or advance you money to prepare or research the case, you have the right to know periodically how much money your lawyer has spent on your behalf. You also have the right to decide, after consulting with your lawyer, how much money is to be spent to prepare a case. If you pay the expenses, you have the right to decide how much to spend. Your lawyer should also inform you whether the fee will be based on the gross amount recovered or on the amount recovered minus the costs.

7. You, the client, have the right to be told by your lawyer about possible adverse consequences if you lose the case. Those adverse consequences might include money that you might have to pay to your lawyer for costs and liability you might have for attorney’s fees, costs, and expenses to the other side.

8. You, the client, have the right to receive and approve a closing statement at the end of the case before you pay any money. The statement must list all of the financial details of the entire case, including the amount recovered, all expenses, and a precise statement of your lawyer’s fee. Until you approve the closing statement your lawyer cannot pay any money to anyone, including you, without an appropriate order of the court. You also have the right to have every lawyer or law firm working on your case sign this closing statement.

9. You, the client, have the right to ask your lawyer at reasonable intervals how the case is progressing and to have these questions answered to the best of your lawyer’s ability.

10. You, the client, have the right to make the final decision regarding settlement of a case. Your lawyer must notify you of all offers of settlement before and after the trial. Offers during the trial must be immediately communicated and you should consult with your lawyer regarding whether to accept a settlement. However, you must make the final decision to accept or reject a settlement.

11. If at any time you, the client, believe that your lawyer has charged an excessive or illegal fee, you have the right to report the matter to The Florida Bar, the agency that oversees the practice and behavior of all lawyers in Florida. For information on how to reach The Florida Bar, call 850/561-5600, or contact the local bar association. Any disagreement between you and your lawyer about a fee can be taken to court and you may wish to hire another lawyer to help you resolve this disagreement. Usually fee disputes must be handled in a separate lawsuit, unless your fee contract provides for arbitration. You can request, but may not require, that a provision for arbitration (under Chapter 682, Florida Statutes, or under the fee arbitration rule of the Rules Regulating The Florida Bar) be included in your fee contract.

__________________________________________
Client Signature

__________________________________________
Date

_________________________________________
Attorney Signature

_________________________________________
Date

fracking in florida

Fracking in Florida?

The rapidly growing practice of hydraulic fracturing, also known as “fracking,” has incited significant debate. Some argue that this technology, which involves extracting hard-to-get natural gas and oil deposits by injecting water, sand, and chemicals into wells in order to fracture rock and recover these energy sources, provides substantial revenue and jobs, and helps make the country more energy independent. Others claim it causes a variety of environmental and human health problems ranging from air pollution and groundwater contamination to the overuse of water. Until now, hydraulic fracturing has not been widespread in Florida. Much of the hydraulic fracturing debate has been concentrated in states like Pennsylvania, New York, Colorado, and Texas. However, as oil and gas companies begin to show greater interest in the potential of this technology, it appears fracking in Florida is becoming more and more of a reality.
The Florida Department of Environmental Protection (FDEP) recently approved a permit application for an exploratory well in Collier County. The permit issued to the Dan A. Hughes Company, a Texas oil and gas company, authorizes the drilling of a well in the Big Cypress Swamp watershed, less than a mile from the Florida Panther National Wildlife Refuge and underneath the main public supply wellfield for the City of Naples. Although the Hughes Co. claims that it has no plans to utilize fracking technology, some say nothing prohibits the company from changing its mind and fear that permitting wells in this location may set a precedent for exploration and drilling that will lead to fracking on and beneath sensitive environmental habitats throughout Florida.
Accordingly, two persons — a small South Florida wildlife organization and an adjoining landowner — have filed administrative challenges to FDEP’s proposed permit. Among other bases for the challenges, the petitioners claim that the Texas oil and gas company’s proposal fails to comply with industry standards and would violates Florida law, which prohibits oil and gas drilling activities within a mile of lands with such a designation. The Florida panther is one of the most endangered species in the United States as there are only about 160 Florida panthers remaining. In addition, the Big Cypress Swamp Advisory Committee, established within FDEP to make nonbinding recommendations, recently voted to recommend denial of the permit. Although challenges to the permit currently prohibit the Hughes Co. from constructing the well, an Administrative Law Judge (ALJ) has the final say and is expected to make a decision this spring. Regardless of the ALJ’s decision, FDEP’s intent to approve the permit, combined with other actions by oil and gas companies, signifies an increasing interest in such drilling in Florida and means that the debate over fracking in Florida is likely just beginning.

BASIC WATER LAW

Part I: “No, you don’t own the water”

It is no secret that water is very important to all of us. Unfortunately, the fact that water supply problems are growing is no secret either these days. We all need water for drinking and other domestic/household purposes, and we need water for agriculture (the biggest consumer), industry, commerce, recreation, and other uses. Water scarcity often gives rise to significant tension among those competing for water. Moreover, it can also cause political and social instability, as well as cause environmental harm.
So, how do we currently (fairly) allocate water among the various uses that depend on water? Do our laws sufficiently safeguard the environment or protect the needs of industry? How does Florida’s framework compare to other states’?
We need to start by acknowledging a fundamental principle of Florida water law that no one “owns” any water or has a property right interest in the water itself. Practically what this means is that in order to use water for any purpose other than personal drinking, bathing, cooking, or sanitation, you may be required to have a “permit” from one of the five water management districts. For example, if you reside in the St. Johns River Water Management District, you have a permit-by-rule to irrigate your residential landscape; that permit imposes certain conditions on the manner in which you water lawn, etc. such as not allowing you to irrigate between the hours of 10:00 AM and 4:00 PM. Water use permits merely confer the right to use water, a usufructory right, for a particular purpose, in a conditional manner, and for a specified period of time.
The water law systems currently in effect in the United States developed out of two traditional and distinct surface water doctrines – one in the eastern United States and the other in the more arid west, known respectively as Eastern Water Law and Western Water Law. Today, the core principles of these traditional common law doctrines continue to significantly influence how states regulate water use or, i.e. allocate water. With some slight federal overlay, water law is predominantly a creature of state law. Over the years, most states have taken steps to update the common law doctrines through legislation; however, in many cases, these have come in the form of narrow laws addressing specific issues. This approach has generally resulted in a disjointed approach to water management. Florida is one exception to this.
Groundwater withdrawals (from wells) in the United States were historically treated differently than surface water uses. While we now understand the connection between groundwater and surface water in the hydrologic cycle, in the not-too-distant past groundwater was quite mysterious to us. As a result, common law was historically relatively lenient when it came to regulating the use of groundwater. As our knowledge of groundwater improved, groundwater use regulations grew more stringent, but generally remained distinct from surface water regulations. In addition to regulating ground and surface water under one system, Florida’s water laws contain many other progressive features.
Florida’s current water law system was established by the Florida Water Resources Act of 1972, which was based upon the Model Water Code, and is widely viewed as one of the most progressive and comprehensive in the nation. You can read Parts II and III of this article, which will describe the two traditional common law water doctrines and Florida’s statutory system of water law, in upcoming newsletters.

Social security disability applications going forward

According to the Social Security Administration over the ten years between 2001 and 2010, applications for Social Security disability benefits increased 250%. The percentage of favorable awards of disability benefits over that same time declined from 46.1% to 35.7% (as a percent of all applications). The last five years has seen a 28% increase in applications and an acceptance rate decline to 33%. The Congressional Budget Office (“CBO”) attributes the increase in applications to characteristics of the population, federal policies, and declining opportunities for employment. The CBO further reports that of the applications received for disability benefits in 2005 that were rejected, appeals were filed in one-third of those cases. In three-quarters of the cases appealed, the initial decisions were reversed. CBO also reports that the number of beneficiaries tends to increase even after the economy begins to recover from downturns. You can expect to get calls, or continue to get calls, concerning the Social Security disability appeals process.
Under the Social Security Act, “disability” means the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than twelve (12) months.” There are five major types of Social Security disability benefits. Calls concerning Social Security Disability Insurance benefit are the most common (“SSDI”). It is paid to individuals who have worked in the recent past (5 out of the last 10 years in most cases) who are now disabled. The other income benefit commonly asked about is Supplemental Security Income benefits (“SSI”). These benefits are paid to individuals who are poor and who are disabled. Both these disability benefits are increasingly applied for online in addition to being applied for in person at a local Social Security field office or by mailing the application to a local office. Unless the disability is catastrophic, such as terminal cancer, a heart condition that is so bad that you are on a heart transplant waiting list, or total paralysis of both legs, there is no easy way for the lawyer or client to know whether an applicant will be found disabled by Social Security. The decision of whether or not to appeal a denial of disability benefits should be based upon whether or not the applicant genuinely feels that he or she cannot engage in any substantial gainful activity.
Only about 27% of Social Security applications are approved upon the initial application level in Florida. The first review of a denial is done by the Social Security Administration and is obtained by requesting a “reconsideration.” Only about 9% of the reconsideration requests filed in Florida are won. If the claim is denied on reconsideration, the next level of review is performed by an administrative law judge who will conduct a “non-adversarial” hearing where the applicant testifies. Currently, a little over half of the hearings result in a favorable award of benefits. In my experience, there is a large measure of subjectivity to these decisions. Within the Jacksonville, Florida regional office where most of the cases from the Gainesville area are decided, there is a judge with a favorable award rate consistently around 85% while another’s is consistently around 15%. Similar examples exist in the Orlando and Tampa regional offices. Hearings are fairly informal. Applicants are entitled to a live hearing, however, with consent they are sometimes done remotely via video-conference. The only people present are the applicant/claimant, the judge, a person operating a recording devise, a vocational expert and or a medical advisor, and the claimant’s representative. Most of the judges in my experience begin to get impatient with claimant’s representatives if you take more than 45 to 60 minutes to question the claimant and discourage calling witnesses other than the claimant.
Disability can result from a single medical or psychiatric problem or, as is often the case, from a combination of medical and or psychiatric problems. Medical documentation is essential to advancing a claim. At the initial stage of application, the Social Security Administration is supposed to gather all of the claimant’s medical records. However, I have found the completeness of this effort to be lacking, and a large part of my time and effort is spent keeping up with where my clients are getting treatment and making sure these records are made a part of the Social Security Administration’s file.
Applicants without access to medical care are at a serious disadvantage in proving disability. In addition to the medical issues, age, past work experience, and education are important factors in evaluating an applicant’s disability claim. The disabling conditions that are the basis of the application need not be permanent, but applicants must have been disabled for one year or be expected to be disabled for at least one year, or have a condition that can be expected to result in death within one year.
The initial application typically takes three to four months to be reviewed. The reconsideration likewise takes three to four months. The processing time for a hearing in the Jacksonville office is currently reported to be 341 days. The Social Security Administration’s website, www.ssa.gov, is a valuable internet resource as is the website created by the National Organization of Social Security Claimants’ Representatives found at www.nosscr.org.

Social Security tightens down on disability claims

Objective medical evidence of degenerative disc disease, diabetes, COPD, depression and other mental health issues, back problems, congestive heart failure, kidney disease, liver disease, Hep-C, fibromyalgia, learning disabilities, chronic pain, PTSD, peripheral artery disease, can all lead to the inability to work. These conditions can cause a wide range of limitations. The judges who decide the cases frequently must decide how much of the applicants testimony to believe. Credibility becomes exceedingly important in the evaluation. Keeping a log of daily symptoms helps build that credibility. The log need not be elaborate or eloquent. It only needs to provide you a method to explain your symptoms over many months.
These logs will help win your appeal of the denied reconsideration.

Fibromyalgia and Social security disability SSR 12-2p

POLICY INTERPRETATION RULING

SSR 12-2p: Titles II and XVI: Evaluation of Fibromyalgia
Purpose: This Social Security Ruling (SSR) provides guidance on how we develop evidence to establish that a person has a medically determinable impairment (MDI) of fibromyalgia (FM), and how we evaluate FM in disability claims and continuing disability reviews under titles II and XVI of the Social Security Act (Act).[1]
Citations: Sections 216(i), 223(d), 223(f), 1614(a)(3), and 1614(a)(4) of the Act, as amended; Regulations No. 4, subpart P, sections 404.1505, 404.1508- 404.1513, 404.1519a, 404.1520, 404.1520a, 404.1521, 404.1523, 404.1526, 404.1527- 404.1529, 404.1545, 404.1560- 404.1569a, 404.1593, 404.1594, appendix 1, and appendix 2; and Regulations No. 16, subpart I, sections 416.905, 416.906, 416.908-416.913, 416.919a, 416.920, 416.920a, 416.921, 416.923, 416.924, 416.924a, 416.926, 416.926a, 416.927- 416.929, 416.945, 416.960-416.969a, 416.987, 416.993, 416.994, and 416.994a.
Introduction
FM is a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months. FM is a common syndrome.[2] When a person seeks disability benefits due in whole or in part to FM, we must properly consider the person’s symptoms when we decide whether the person has an MDI of FM. As with any claim for disability benefits, before we find that a person with an MDI of FM is disabled, we must ensure there is sufficient objective evidence to support a finding that the person’s impairment(s) so limits the person’s functional abilities that it precludes him or her from performing any substantial gainful activity. In this Ruling, we describe the evidence we need to establish an MDI of FM and explain how we evaluate this impairment when we determine whether the person is disabled.
Policy Interpretation
FM is an MDI when it is established by appropriate medical evidence. FM can be the basis for a finding of disability.
I. What general criteria can establish that a person has an MDI of FM? Generally, a person can establish that he or she has an MDI of FM by providing evidence from an acceptable medical source.[3] A licensed physician (a medical or osteopathic doctor) is the only acceptable medical source who can provide such evidence. We cannot rely upon the physician’s diagnosis alone. The evidence must document that the physician reviewed the person’s medical history and conducted a physical exam. We will review the physician’s treatment notes to see if they are consistent with the diagnosis of FM, determine whether the person’s symptoms have improved, worsened, or remained stable over time, and establish the physician’s assessment over time of the person’s physical strength and functional abilities.
II. What specific criteria can establish that a person has an MDI of FM? We will find that a person has an MDI of FM if the physician diagnosed FM and provides the evidence we describe in section II.A. or section II. B., and the physician’s diagnosis is not inconsistent with the other evidence in the person’s case record. These sections provide two sets of criteria for diagnosing FM, which we generally base on the 1990 American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia[4] (the criteria in section II.A.), or the 2010 ACR Preliminary Diagnostic Criteria[5] (the criteria in section II.B.). If we cannot find that the person has an MDI of FM but there is evidence of another MDI, we will not evaluate the impairment under this Ruling. Instead, we will evaluate it under the rules that apply for that impairment.
A. Based on these criteria, we may find that a person has an MDI of FM if he or she has all three of the following:
1. A history of widespread pain—that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months. The pain may fluctuate in intensity and may not always be present.
2. At least 11 positive tender points on physical examination (see diagram below). The positive tender points must be found bilaterally (on the left and right sides of the body) and both above and below the waist.
a. The 18 tender point sites are located on each side of the body at the:
Occiput (base of the skull);
Low cervical spine (back and side of the neck); Trapezius muscle (shoulder);
Supraspinatus muscle (near the shoulder blade); Second rib (top of the rib cage near the sternum or breast bone);
Lateral epicondyle (outer aspect of the elbow);
Gluteal (top of the buttock);
Greater trochanter (below the hip); and
Inner aspect of the knee.
b. In testing the tender-point sites,[6] the physician should perform digital palpation with an approximate force of 9 pounds (approximately the amount of pressure needed to blanch the thumbnail of the examiner). The physician considers a tender point to be positive if the person experiences any pain when applying this amount of pressure to the site.
3. Evidence that other disorders that could cause the symptoms or signs were excluded. Other physical and mental disorders may have symptoms or signs that are the same or similar to those resulting from FM.[7] Therefore, it is common in cases involving FM to find evidence of examinations and testing that rule out other disorders that could account for the person’s symptoms and signs. Laboratory testing may include imaging and other laboratory tests (for example, complete blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor).

B. The 2010 ACR Preliminary Diagnostic Criteria. Based on these criteria, we may find that a person has an MDI of FM if he or she has all three of the following criteria[8]:
1. A history of widespread pain (see section II.A.1.);
2. Repeated manifestations of six or more FM symptoms, signs,[9] or co-occurring conditions,[10] especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed,[11] depression, anxiety disorder, or irritable bowel syndrome; and
3. Evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded (see section II.A.3.).
III. What documentation do we need?
A. General.
1. As in all claims for disability benefits, we need objective medical evidence to establish the presence of an MDI. When a person alleges FM, longitudinal records reflecting ongoing medical evaluation and treatment from acceptable medical sources are especially helpful in establishing both the existence and severity of the impairment. In cases involving FM, as in any case, we will make every reasonable effort to obtain all available, relevant evidence to ensure appropriate and thorough evaluation.
2. We will generally request evidence for the 12-month period before the date of application unless we have reason to believe that we need evidence from an earlier period, or unless the alleged onset of disability is less than 12 months before the date of application.[12] In the latter case, we may still request evidence from before the alleged onset date if we have reason to believe that it could be relevant to a finding about the existence, severity, or duration of the disorder, or to establish the onset of disability.
B. Other sources of evidence.
1. In addition to obtaining evidence from a physician, we may request evidence from other acceptable medical sources, such as psychologists, both to determine whether the person has another MDI(s) and to evaluate the severity and functional effects of FM or any of the person’s other impairments. We also may consider evidence from medical sources who are not “acceptable medical sources” to evaluate the severity and functional effects of the impairment(s).
2. Under our regulations and SSR 06-3p,[13] information from nonmedical sources can also help us evaluate the severity and functional effects of a person’s FM. This information may help us to assess the person’s ability to function day-to-day and over time. It may also help us when we make findings about the credibility of the person’s allegations about symptoms and their effects.[14] Examples of nonmedical sources include:
a. Neighbors, friends, relatives, and clergy;
b. Past employers, rehabilitation counselors, and teachers; and
c. Statements from SSA personnel who interviewed the person.
C. When There Is Insufficient Evidence for Us to Determine Whether the Person Has an MDI of FM or Is Disabled.
1. We may take one or more actions to try to resolve the insufficiency:[15]
a. We may recontact the person’s treating or other sources(s) to see if the information we need is available;
b. We may request additional existing records;
c. We may ask the person or others for more information; or
d. If the evidence is still insufficient to determine whether the person has an MDI of FM or is disabled despite our efforts to obtain additional evidence, we may make a determination or decision based on the evidence we have.
2. We may purchase a consultative examination (CE) at our expense to determine if a person has an MDI of FM or is disabled when we need this information to adjudicate the case.[16]
a. We will not purchase a CE solely to determine if a person has FM in addition to another MDI that could account for his or her symptoms.
b. We may purchase a CE to help us assess the severity and functional effects of medically determined FM or any other impairment(s). If necessary, we may purchase a CE to help us determine whether the impairment(s) meets the duration requirement.
c. Because the symptoms and signs of FM may vary in severity over time and may even be absent on some days, it is important that the medical source who conducts the CE has access to longitudinal information about the person. However, we may rely on the CE report even if the person who conducts the CE did not have access to longitudinal evidence if we determine that the CE is the most probative evidence in the case record.
IV. How do we evaluate a person’s statements about his or her symptoms and functional limitations? We follow the two-step process set forth in our regulations and in SSR 96-7p. [17]
A. First step of the symptom evaluation process. There must be medical signs and findings that show the person has an MDI(s) which could reasonably be expected to produce the pain or other symptoms alleged. FM which we determined to be an MDI satisfies the first step of our two-step process for evaluating symptoms.
B. Second step of the symptom evaluation process. Once an MDI is established, we then evaluate the intensity and persistence of the person’s pain or any other symptoms and determine the extent to which the symptoms limit the person’s capacity for work. If objective medical evidence does not substantiate the person’s statements about the intensity, persistence, and functionally limiting effects of symptoms, we consider all of the evidence in the case record, including the person’s daily activities, medications or other treatments the person uses, or has used, to alleviate symptoms; the nature and frequency of the person’s attempts to obtain medical treatment for symptoms; and statements by other people about the person’s symptoms. As we explain in SSR 96-7p, we will make a finding about the credibility of the person’s statements regarding the effects of his or her symptoms on functioning. We will make every reasonable effort to obtain available information that could help us assess the credibility of the person’s statements.
V. How do we find a person disabled based on an MDI of FM? Once we establish that a person has an MDI of FM, we will consider it in the sequential evaluation process to determine whether the person is disabled. As we explain in section VI. below, we consider the severity of the impairment, whether the impairment medically equals the requirements of a listed impairment, and whether the impairment prevents the person from doing his or her past relevant work or other work that exists in significant numbers in the national economy.
VI. How do we consider FM in the sequential evaluation process?[18] As with any adult claim for disability benefits, we use a 5-step sequential evaluation process to determine whether an adult with an MDI of FM is disabled.[19]
A. At step 1, we consider the person’s work activity. If a person with FM is doing substantial gainful activity, we find that he or she is not disabled.
B. At step 2, we consider whether the person has a “severe” MDI(s). If we find that the person has an MDI that could reasonably be expected to produce the pain or other symptoms the person alleges, we will consider those symptom(s) in deciding whether the person’s impairment(s) is severe. If the person’s pain or other symptoms cause a limitation or restriction that has more than a minimal effect on the ability to perform basic work activities, we will find that the person has a severe impairment(s).[20]
C. At step 3, we consider whether the person’s impairment(s) meets or medically equals the criteria of any of the listings in the Listing of Impairments in appendix 1, subpart P of 20 CFR part 404 (appendix 1). FM cannot meet a listing in appendix 1 because FM is not a listed impairment. At step 3, therefore, we determine whether FM medically equals a listing (for example, listing 14.09D in the listing for inflammatory arthritis), or whether it medically equals a listing in combination with at least one other medically determinable impairment.
D. Residual Functional Capacity (RFC) assessment: In our regulations and SSR 96-8p,[21] we explain that we assess a person’s RFC when the person’s impairment(s) does not meet or equal a listed impairment. We base our RFC assessment on all relevant evidence in the case record. We consider the effects of all of the person’s medically determinable impairments, including impairments that are “not severe.” For a person with FM, we will consider a longitudinal record whenever possible because the symptoms of FM can wax and wane so that a person may have “bad days and good days.”
E. At steps 4 and 5, we use our RFC assessment to determine whether the person is capable of doing any past relevant work (step 4) or any other work that exists in significant numbers in the national economy (step 5). If the person is able to do any past relevant work, we find that he or she is not disabled. If the person is not able to do any past relevant work or does not have such work experience, we determine whether he or she can do any other work. The usual vocational considerations apply.[22]
1. Widespread pain and other symptoms associated with FM, such as fatigue, may result in exertional limitations that prevent a person from doing the full range of unskilled work in one or more of the exertional categories in appendix 2 of subpart P of part 404 (appendix 2).[23] People with FM may also have nonexertional physical or mental limitations because of their pain or other symptoms.[24] Some may have environmental restrictions, which are also nonexertional.
2. Adjudicators must be alert to the possibility that there may be exertional or nonexertional (for example, postural or environmental) limitations that erode a person’s occupational base sufficiently to preclude the use of a rule in appendix 2 to direct a decision. In such cases, adjudicators must use the rules in appendix 2 as a framework for decision-making and may need to consult a vocational resource.[25]
DATES: Effective Date: This SSR is effective on July 25, 2012.
Cross-References: SSR 82-63: Titles II and XVI: Medical-Vocational Profiles Showing an Inability To Make an Adjustment to Other Work; SSR 83-12: Title II and XVI: Capability To Do Other Work—The Medical-Vocational Rules as a Framework for Evaluating Exertional Limitations Within a Range of Work or Between Ranges of Work; SSR 83-14: Titles II and XVI: Capability To Do Other Work—The Medical-Vocational Rules as a Framework for Evaluating a Combination of Exertional and Nonexertional Impairments; SSR 85-15: Titles II and XVI: Capability To Do Other Work—The Medical-Vocational Rules as a Framework for Evaluating Solely Nonexertional Impairments; SSR 96-3p: Titles II and XVI: Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable Impairment is Severe; SSR 96-4p: Policy Interpretation Ruling Titles II and XVI: Symptoms, Medically Determinable Physical and Mental Impairments, and Exertional and Nonexertional Limitations; SSR 96-7p: Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements; SSR 96-8p: Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims; SSR 96-9p, Titles II and XVI: Determining Capability to Do Other Work—Implications of a Residual Functional Capacity for Less Than a Full Range of Sedentary Work; SSR 99-2p: Titles II and XVI: Evaluating Cases Involving Chronic Fatigue Syndrome (CFS); SSR 02-2p: Titles II and XVI: Evaluation of Interstitial Cystitis; and SSR 06-3p: Titles II and XVI: Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies; and Program Operations Manual System (POMS) DI 22505.001, DI 22505.003, DI 24510.057, DI 24515.012, DI 24515.061-DI 24515.063, DI 24515.075, DI 24555.001, DI 25010.001, and DI 25025.001.
[1] For simplicity, we refer in this SSR only to initial claims for benefits made by adults (individuals who are at least age 18). However, the policy interpretations in this SSR also apply to claims for benefits made by children (individuals under age 18) under title XVI of the Act and to claims above the initial level. FM can affect children, and the signs and symptoms are essentially the same in children as adults. The policy interpretations in this SSR also apply to continuing disability reviews of adults and children under sections 223(f) and 1614(a)(4) of the Act, and to redeterminations of eligibility for benefits we make in accordance with section 1614(a)(3)(H) of the Act when a child who is receiving title XVI childhood disability benefits attains age 18.
[2] See National Center for Biotechnology Information, U.S. National Library of Medicine, Fibromyalgia, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001463.
[3] See 20 CFR 404.1513(a) and 416.913(a).
[4] See Frederick Wolfe et al., The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia: Report of the Multicenter Criteria Committee, 33 Arthritis and Rheumatism 160 (1990), available at http://www.rheumatology.org/practice/clinical/classification/fibromyalgia/1990_Criteria_for_Classification_Fibro.pdf.
[5] See Frederick Wolfe et al., The American College of Rheumatology Preliminary Diagnostic Criteria for Fibromyalgia and Measurement of Symptom Severity, 62 Arthritis Care & Research 600 (2010), available at http://www.rheumatology.org/practice/clinical/classification/fibromyalgia/2010_Preliminary_Diagnostic_Criteria.pdf.
[6] We may use the criteria in section II.B. of this SSR to determine an MDI of FM if the case record does not include a report of the results of tender-point testing, or the report does not describe the number and location on the body of the positive tender points.
[7] Some examples of other disorders that may have symptoms or signs that are the same or similar to those resulting from FM include rheumatologic disorders, myofacial pain syndrome, polymyalgia rheumatica, chronic Lyme disease, and cervical hyperextension-associated or hyperflexion-associated disorders.
[8] We adapted the criteria from the 2010 ACR Preliminary Diagnostic Criteria because the Act and our regulations require a claimant for disability benefits to establish by objective medical evidence that he or she has a medically determinable impairment. See sections 223(d)(5)(A) and 1614(a)(3)(D) of the Act; 20 CFR 404.1508 and 416.908; SSR 96-4p: Titles II and XVI: Symptoms, Medically Determinable Physical and Mental Impairments, and Exertional and Nonexertional Limitations, 61 FR 34488 (July 2, 1996) (also available at: http://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR96-04-di-01.html).
[9] Symptoms and signs that may be considered include the “(s)omatic symptoms” referred to in Table No. 4, “Fibromyalgia diagnostic criteria,” in the 2010 ACR Preliminary Diagnostic Criteria. We consider some of the “somatic symptoms” listed in Table No. 4 to be “signs” under 20 C.F.R. 404.1528(b) and 416.928(b). These “somatic symptoms” include muscle pain, irritable bowel syndrome, fatigue or tiredness, thinking or remembering problems, muscle weakness, headache, pain or cramps in the abdomen, numbness or tingling, dizziness, insomnia, depression, constipation, pain in the upper abdomen, nausea, nervousness, chest pain, blurred vision, fever, diarrhea, dry mouth, itching, wheezing, Raynaud’s phenomenon, hives or welts, ringing in the ears, vomiting, heartburn, oral ulcers, loss of taste, change in taste, seizures, dry eyes, shortness of breath, loss of appetite, rash, sun sensitivity, hearing difficulties, easy bruising, hair loss, frequent urination, or bladder spasms.
[10] Some co-occurring conditions that may be considered are referred to in Table No. 4, “Fibromyalgia diagnostic criteria,” in the 2010 ACR Preliminary Diagnostic Criteria as “somatic symptoms,” such as irritable bowel syndrome or depression. Other co-occurring conditions, which are not listed in Table No. 4, may also be considered, such as anxiety disorder, chronic fatigue syndrome, irritable bladder syndrome, interstitial cystitis, temporomandibular joint disorder, gastroesophageal reflux disorder, migraine, or restless leg syndrome.
[11] “Waking unrefreshed” may be indicated in the case record by the person’s statements describing a history of non-restorative sleep, such as statements about waking up tired or having difficulty remaining awake during the day, or other statements or evidence in the record reflecting that the person has a history of non-restorative sleep.
[12] See 20 CFR 404.1512(d) and 416.912(d).
[13] See 20 CFR 404.1513(d)(4), 416.913(d)(4); SSR 06-3p: Titles II and XVI: Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims, 71 FR 45593 (August 9, 2006), (also available at: http://www.ssa.gov/OP_Home/rulings/di/01/SSR2006-03-di-01.html).
[14] See section IV below.
[15] See 20 CFR 404.1520b(c) and 416.920b(c).
[16] See 20 CFR 404.1520b(c)(3), and 416.920b(c)(3). We may purchase a CE without recontacting a person’s treating or other sources if the source cannot provide the necessary information, or the information is not available from the source. See 20 CFR 404.1519a(b), and 416.919a(b).
[17] See 20 CFR 404.1529(b) and (c) and 416.929(b). and (c); SSR 96-7p: Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements, 61 FR 34483 (July 2, 1996) (also available at: http://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR96-07-di-01.html).
[18] As we have already noted, we refer in this SSR only to adult disability claims, but the guidance in the SSR applies to all disability cases under titles II and XVI involving FM. We use different sequential evaluation processes for claims of children under title XVI and in continuing disability reviews of adults and children under titles II and XVI. See 20 CFR 404.1594, 416.924, 416.994, and 416.994a. We also use a modification of the 5-step sequential evaluation process for adults in 20 CFR 416.920 when we do age-18 redeterminations under title XVI. See 20 CFR 416.987.
[19] See 20 CFR 404.1520 and 416.920.
[20] See SSR 96-3p: Titles II and XVI: Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable Impairment is Severe, 61 FR 34468 (July 2, 1996) (also available at: http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-03-di-01.html).
[21] See 20 CFR 404.1520(e), 416.920(e); SSR 96-8p: Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 61 FR 34474 (July 2, 1996) (also available at: http://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR96-08-di-01.html).
[22] See 20 CFR 404.1560- 404.1569a and 416.960- 416.969a.
[23] See SSR 83-12: Title II and XVI: Capability To Do Other Work—The Medical-Vocational Rules as a Framework for Evaluating Exertional Limitations Within a Range of Work or Between Ranges of Work (available at http://www.socialsecurity.gov/OP_Home/rulings/di/02/SSR83-12-di-02.html).
[24] See SSR 85-15: Titles II and XVI: Capability To Do Other Work—The Medical-Vocational Rules as a Framework for Evaluating Solely Nonexertional Impairments, (available at: http://www.socialsecurity.gov/OP_Home/rulings/di/02/SSR85-15-di-02.html); and SSR 96-4p.
[25] See SSR 83-12; SSR 83-14: Titles II and XVI: Capability To Do Other Work—The Medical-Vocational Rules as a Framework for Evaluating a Combination of Exertional and Nonexertional Impairments (available at http://www.socialsecurity.gov/OP_Home/rulings/di/02/SSR83-14-di-02.html); SSR 85-15; and SSR 96-9p, Titles II and XVI: Determining Capability to Do Other Work—Implications of a Residual Functional Capacity for Less Than a Full Range of Sedentary Work, 61 FR 34478 (July 2, 1996) (also available at: http://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR96-09-di-01.html).

Vet’s can also be eligible for Social Security benefits

I usually have 4 or 5 open Social Security cases in which the applicant is a military veteran with a disability connected to his or her service. Some of these veterans are receiving income benefits. Veterans of US military service who are drawing disability payments from the VA have gone through a rigorous process to get paid. While eligibility for veterans benefits does not guarantee eligibility for Social Security, it is taken into consideration since the standards are very similar. One important difference is that the VA has schedules for partial disability, and for Social Security, an applicant has to be totally disabled, unable to do ANY kind of full time work. A person with a 100% disability rating from the VA should be successful in getting Social Security benefits as well. As with any claim for social security disability insurance (SSDI) benefit the applicant must have paid into the system through payroll taxes to be eligible. If your’e a veteran and have been denied SSDI call me.

Future of social security

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Applying for SSDI

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