Using a Functional Capacity Argument
to Prove Disability in a Back Pain Case

  Most Social Security disability case approvals are granted by judges based on the claimant’s residual functional capacity (also known as your “RFC”).  An RFC determination is a legal determination - it means that the administrative law judge has considered your medical or mental health problems and has decided that the effect of one or more of your conditions is to reduce your capacity for work to the point where you would not be able to function in a competitive work environment.

  While the exact elements of an RFC argument are limited only by your lawyer’s creativity, the factors that I tend to focus on are as follows:

• a primary medical problem that creates activity limitations
• other medical problems that might not be enough to support disability on their own but, when added to your main condition, create specific activity limitations
• medication side effects such as fatigue, nausea, gastric distress or poor concentration
• depression/anxiety that arise from dealing with your medical problems

  Social Security’s definition of disability looks to your capacity for work rather than just at your medical problem.  In a back case, you could have a herniated disck, severe arthritis, diabetic complications and depression, but but if your doctor will not go on record to say that one or more of these conditions will prevent you from performing a simple, unskilled job 8 hours a day, 5 days a week, you will not win your case.

How to Use a Functional Capacity Argument
to Win Your Social Security Disability Case

  When presenting an RFC argument, my main goal is to demonstrate to the judge that you would not be a reliable worker at even the easiest, sit-down, low stress job that exists in the national economy.  In most hearings, Social Security judges hire vocational experts to testify about your past work and about what you might be able to do given the limitations that arise from the evidence presented at your hearing.

  Limitations arising from severe and chronic back pain fall into two categories - exertional impairments and non-exertional impairments.

  The term “exertional impairment” refers to phyisical limitations, such as lifting, carrying, sitting, standing, walking, balancing and stooping.  The term “non-exertional impairment” refers to pain.

  Generally, the core issue presented in an RFC argument looks to your reliability at a simple, unskilled job.  For example, if you have exertional impairments that include no more than 10 minutes sitting at a time, and no more than 7 minutes standing and walking at a time, with no more than 2 hours total standing during a day and no more than 2 hours standing and walking during a day, there is no way you could sustain competitive work 8 hours a day.

  If the easiest job in the national economy is an unskilled, sedentary (sit down) job with a sit/stand option, a job that does not require repetitive use of the hands, a job that is not production based and does not involve significant interaction with co-workers or supervisors, I need an RFC form that says even a job like this is too much for my client.

  As an aside, the jobs that vocational witnesses often use as the easiest jobs that exist include:

• surveillance system monitor
• hand packer
• foil wrapper
• textile inspector
• small parts assembler

  Similarly, if your pain level was such that it caused a significant interference with your capacity to perform simple job instructions, or if the depression associated with your back pain left you with a “poor” capacity to handle regular work stress, there are no jobs that you could perform.

The RFC Form - An Effective Tool Used in My Law Office

  By far, the most effective tool to demonstrate your residual functional capacity is a functional capacity checklist.  Whenever possible, I prepare a functional capacity checklist for my client’s doctor to fill out.  Sometimes, doctors want to help but don’t know how to fill out my form - in such a case I will identify the specific questions that I know will win my case and I will explain to the doctor why a particular answer is what we need.  Ultimately, of course, the doctor has to fill out my form as he sees fit - if I can help the doctor translate Social Security’s code, I will gladly do so for my clients.

  I do not give away my practice checklists to non-clients, but I have made them available in book form - both blank forms and completed forms with suggested answers - you can read more here about my “how to” guide for Social Security disability claims.

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