How Does a Social Security Disability ALJ Decide Your RFC (Step 3A)?

How Does a Social Security Disability ALJ Decide Your RFC (Step 3A)?

An RFC, Residual Functional Capacity, is among the hardest decisions a Social Security Administrative Law Judge (ALJ) will have to make in your case. Some people (and some courts) believe that the ALJ simply decides your RFC by guessing. However, the ALJ is actually required to consider many factors, as you can see in the below infographic. 

WHY IS IT IMPORTANT TO UNDERSTAND RESIDUAL FUNCTIONAL CAPACITY?

Understanding the RFC is important because when you know what the ALJ is required to consider when evaluating your RFC, you and your attorney can ensure that the ALJ is aware of key facts and evidence that support your case. You want the ALJ to arrive at an accurate RFC. She will not be able to do that if, for example, she is not made aware of the significance of a side effect of medication, or that a physical therapy treatment that was supposed to restore full recovery did not improve your ability to use your shoulder, but made it worse.

There are many Social Security institutionalized practices that are making it more and more difficult for ALJs to give each case the attention that it deserves. ALJs are being buried in cases and are under extreme pressure to quickly decide their cases. Do not rely upon an ALJ to connect all the dots. As discussed below, your RFC is the linchpin that decides the rest of your case.

You need a skilled attorney on your side.

Do you really want to leave to chance that the ALJ will identify and appreciate the significance of facts in these various areas when they are under incredible pressure to move cases as quickly as they can?

WHAT IS AN RFC?

The RFC is the “most” work activity you can sustain on a regular and continuing basis. This should not be confused with what you can only do on a “bad” day. Nor does it pertain only to what you can only do on your “good” days. Rather, it is what you can reasonably do for about 8 hours a day, 5 days a week. Social Security has decided that,  in general, the RFC describes the capacity a person still has, despite their impairments, to work on a regular and continuing basis. This means that if your RFC only allows you to sustain part-time work, you are generally considered disabled.

There is an exception. If in any past job in the last 15 years, you earned a substantial amount of  money through your work activity (what Social Security calls Substantial Gainful Activity), even though you were working part-time, then an ALJ may legitimately find that your RFC need not apply to full-time work. In that case, the ALJ will consider your RFC in relationship to your previous work parameters (for example, 20 hours per week).  We will discuss how an ALJ decides whether you can perform your past work (step 4) in a future post. Nevertheless, for the overwhelming majority of claimants, your RFC is what you must be capable of sustaining on a full-time basis.

RFC, the “most you can do.” It sounds so simple. “Social Security Disability is a five-step process…” That sounds simple too, but as our previous posts show, the process is anything but. In fact, you might be surprised to learn how often vital evidence is never identified to the ALJ at just this step of the process. Don’t let that happen in your case. Take a look at the infographic above. There are likely small but significant facts contained in various areas of your record that must be processed in order to decide what your RFC is.

AN EXAMPLE OF AN RFC

An ALJ must clearly describe your RFC in terms of your actual ability to function.  ALJs are reminded repeatedly by Social Security that when deciding the RFC in a claim for disability benefits they must minimize vague or confusing terms. Here is an example of a Social Security disability program policy-compliant RFC:

The claimant is capable of lifting and carrying 20 pounds occasionally, 10 pounds frequently. She can stand/walk for about 8 hours of a 8 hour work day, she has no limits on sitting. She may reach bilaterally no more than frequently [this up to 2/3 of the work day].”

AN RFC MUST BE BASED UPON EVIDENCE

Finally, the RFC must be linked to the evidence in the record that supports each of the limitations.  The ALJ does that [with the help of a Social Security Attorney Advisor who writes the decision for the ALJ to sign] by listing the various medical impairments in the decision and discussing how those impairments limit (or do not limit) your functioning. After this assessment, the ALJ will arrive at your RFC.

You might think that was the end of the process. But the ALJ must then take that RFC and decide whether it allows you to perform your past work (step 4). If not, she must proceed to the last step which requires her to decide whether that RFC allows you to do any other appropriate work in the national or regional economy, (step 5). You can see an overview of the 5-step process here. (We will address step 4 and 5 issues in future posts.)

Takeaways:

  1. An RFC is a statement about your ability to perform work full-time (generally).
  2. An RFC must be stated in functional terms by the ALJ (ability to: sit/stand/lift/concentrate/take direction/etc.).
  3. The RFC is used by the ALJ to decide whether you can do your past work, or any other appropriate work – i.e. whether you are disabled or not.
  4. As you can see by the ALJ’s use of the RFC in reaching the ultimate decision, the accuracy of your RFC will likely make or break your case.
  5. You should therefore talk with your attorney about the various areas in the infographic that support your case, and decide a plan to get those facts persuasively presented to the ALJ before she decides your RFC. As you can see from our PounceProcess, addressing these issues is baked into our DNA.

 

If you are truly disabled and need help with your Social Security Disability case, contact PounceLaw.  We know Social Security Disability from the inside out.