C. Qualifying for Presumptive Disability Through the DDS

CHAPTER 4  |  GETTING BENEFITS DURING THE APPLICATION PROCESS  |  117



If you fail to win presumptive benefits

during the initial application process at the

SSA Field Office, you can try again when

your case is forwarded to the DDS for

the SSI disability determination. (A DDS

representative has much wider discretion in

granting presumptive disability than a Field

Office representative.) The presumptive

disability determinations that DDS can

make fall into three general categories.



difficulty in predicting severity or duration

of the impairment:

• diabetes

• epilepsy

• high blood pressure

• heart disease caused by high blood

pressure

• peptic ulcer

• cirrhosis of the liver, and

• bone fractures.



1. High Potential for

Presumptive Disability



3. Low Potential for

Presumptive Disability



The DDS is most likely to grant presumptive

disability for the following disabilities:

• severe intellectual disability

• cancer

• central nervous system diseases

resulting in paralysis or difficulty in

walking or using hands and arms

• irreversible kidney disease, and

• symptomatic HIV infection.



The DDS rarely authorizes presumptive

disability payments for the following disorders:

• mental impairments (with the

exceptions of severe intellectual

disability or where there is convincing

evidence of prolonged severe psychosis

or chronic brain syndrome)

• breathing disorders, because medical

tests of breathing ability are crucial to

a determination of disability for most

respiratory impairments, and

• back conditions, except in cases

involving traumatic injury to the spinal

cord (in which case, an award of PD

benefits is more likely).



2. Caution in Granting

Presumptive Disability

The DDS uses caution in granting PD in

the following disabilities because of the



l



C H A P T E R



Proving You Are Disabled

A. Acceptable Medical Sources.......................................................................................................120

B. Medical Evidence From Treating Sources...........................................................................121

1. All Relevant Medical Records.................................................................................................122

2. Timely, Accurate, and Sufficient Medical Records......................................................122

3. Thorough Medical Records......................................................................................................124

4. The Weight of Your Treating Doctor’s Opinion............................................................125

5. Treating Source Statements and Medical Assessments About

Your Ability to Function............................................................................................................126

6. Obtaining and Reviewing Records From Your Treating Doctor...........................127

7. Obtaining and Reviewing Records From Hospitals and Medical Centers......127

8. Evidence the SSA Needs From Treating Sources..........................................................129

9. If Your Records Provide Insufficient or Unhelpful Evidence..................................129

C. The Role of Consultative Examinations in Disability Determination................131

1. When Are Consultative Examinations Used?.................................................................131

2. Who Performs Consultative Examinations?....................................................................131

3. When an Independent Doctor Performs the Consultative Examination.......131

4. Who Serves as Independent Consultative Examiners?..............................................132

5. Who Pays for the Consultative Examination?................................................................132

6. Contents of a CE Report............................................................................................................133

7. Your Protections in a Consultative Examination.........................................................133

8. If the Consultative Examination Is Inadequate.............................................................134

D. Evidence of Symptoms....................................................................................................................134

1. Evidence Related to Symptoms.............................................................................................134

2. The SSA Evaluation of Symptoms.........................................................................................135

3. The SSA Evaluation of Pain.......................................................................................................136

4. If Physical Evidence Does Not Support Your Claim of Pain....................................137

E. Other Evidence....................................................................................................................................137

F. Expedited Determinations...........................................................................................................137

1. Compassionate Allowances Cases.......................................................................................138

2. Terminal Illness Cases..................................................................................................................143

3. Wounded Warriors...................................................................................................................... 144



5



120  |  NOLO’S GUIDE TO SOCIAL SECURITY DISABILITY



E



very person who files a disability

claim for SSDI or SSI is responsible

for providing medical evidence to

the Social Security Administration (SSA)

showing that he or she is impaired, or

“medically eligible” for disability benefits.

You do not have to physically provide

medical reports to the SSA (although you

can, to help expedite a decision). If you give

your permission, the SSA will request your

reports from medical sources (doctors) that

have treated or evaluated you.

Once you have established the existence

of an impairment, the SSA considers both

medical and nonmedical evidence to assess

the severity of your impairment. For this,

the SSA requests copies of medical evidence

from hospitals, clinics, or other health

facilities where you have been treated—if

the SSA doesn’t already have those records.



A. Acceptable Medical Sources

When considering both the existence

and severity of your impairment, the SSA

evaluates reports from all medical providers

who have treated you, called your treating

sources. These include doctors, chiropractors,

naturopaths, and other alternative providers.

But to trust a medical opinion and obtain

medical information necessary for accurate

disability determination, the SSA must

have medical information from what it calls

acceptable medical sources. Reports from

these sources enhance the credibility of your

disability claim.



EXAMPLE: You apply for disability benefits,

but your only treating source for your back

pain is your chiropractor. Any information

provided to the SSA by that chiropractor, no

matter how detailed, is not sufficient for the

SSA to make a disability determination. You

will be sent to an acceptable medical source

for an examination of your back complaints.



Only the following are considered

acceptable medical sources:

• Licensed physicians. A licensed physician

holds an M.D. degree with a valid

license to practice medicine in the

state in which he or she practices.

Chiropractic, homeopathic, naturo­

pathic, and other alternative providers

do not qualify.

• Licensed osteopaths. A licensed osteo­

path holds a D.O. degree with a valid

license in the state in which he or she

practices.

• Licensed or certified psychologists.

A licensed or certified psychologist

holds a doctorate degree (Ph.D.)

in psychology. For the purpose of

establishing severe intellectual disability

or learning disabilities, a licensed or

certified psychologist includes a school

psychologist or another licensed or

certified individual with a different

title who performs the function of a

school psychologist in a school setting.

Psychologists must be licensed in the

state in which they practice.

• Licensed optometrists. An optometrist

holds an O.D. degree. The SSA







will recognize medical evidence

from optometrists as acceptable and

sufficient for diagnostic purposes

(establishing the presence of visual

disorders only), as well as measuring

visual acuity and visual fields. An

exception: Optometrists in the U.S.

Virgin Islands can only measure visual

acuity and visual fields, not provide

a diagnosis. Optometrists must be

validly licensed in the state in which

they practice. Medical doctors (M.D.s)

or osteopaths (D.O.s) who specialize in

the treatment of disease of the eye are

called ophthalmologists, and should

not be confused with optometrists.

• Licensed podiatrists. A licensed podiatrist

holds a D.P.M. degree and is validly

licensed in the state in which he or she

practices. Podiatrists are an acceptable

medical source only to establish

impairments of the foot—or foot and

ankle, depending on the laws of the

state in which they practice.

• Speech-language pathologists. A

qualified speech-language pathologist

is fully certified by the state education

agency in the state in which he or

she practices, is licensed by the state

professional licensing board, or holds

a Certificate of Clinical Competence

from the American Speech-LanguageHearing Association. A speechlanguage pathologist is an acceptable

medical source only to establish speech

or language impairments.



CHAPTER 5  |  PROVING YOU ARE DISABLED  |  121



• Licensed audiologists for impairments

of hearing loss, auditory processing

disorders, and balance disorders,

within the licensed scope of their

practice (which can vary state by state).

Effective March 27, 2017.

• Licensed advanced practice registered

nurses (APRNs), advanced registered

nurse practitioners (ARNPs), or

other advanced practice nurses with

a different title, within their licensed

scope of practice (which can vary by

state). Effective March 27, 2017.

• Licensed Physician Assistants (PAs),

within their licensed scope of practice

(which can vary by state). Effective

March 27, 2017.



B. Medical Evidence From

Treating Sources

Many disability claims are decided on the

basis of medical evidence from treating

sources (your doctors), if they are accept­

able medical sources. For example, the

doctor who treats you for high blood

pressure is often the best medical source of

information for how serious your condition

is. SSA regulations, in some situations,

place special emphasis on evidence from

your treating doctors—especially if they are

acceptable medical sources—because they

are likely to provide the most detailed and

long-term picture of your impairment. They

may also bring a perspective to the medical

evidence that cannot be obtained from the



122  |  NOLO’S GUIDE TO SOCIAL SECURITY DISABILITY



medical findings alone or from reports of

examinations or brief hospitalizations.



1. All Relevant Medical Records

The SSA revised and clarified its regulations

in 2015 (§§ 404.1512, 416.912) to require

you or your lawyer to submit all records

that relate to your disability claim. By

“relate,” the SSA means anything that

has a logical or causal connection to your

medical condition, whether it is favorable or

unfavorable to your claim.

Since the SSA is required by law to

consider the totality of your impairments—

even those that you didn’t include on your

application, the agency wants all of the

available medical records. For example, if

you had back surgery and also a worker’s

compensation claim, the SSA wants any

medical evidence from both. As another

example, if you have a mental impairment

and physical impairment, both are relevant

and should be mentioned on the application,

and you, your doctor, or your lawyer should

submit all of the relevant physical and

mental medical records.

If you have a mental impairment that

interferes with your ability to obtain accurate

records, or you’re homeless, the disability

examiner can help. Relevant nonmedical

records must also be submitted as well,

such as information about your education,

vocational skills, and employment.

When lawyers or other representatives are

representing applicants, they are not free to

choose what information to submit—for



example, withholding medical or nonmedical

evidence that they think might be unfavorable to a claim. For instance, you or your

representative cannot submit evidence from

a medical event or hospitalization but hold

back certain pieces that might appear

unfavorable. Say you were hospitalized for a

possible heart attack but your cardiac scan

was normal—that information must be

included with the other evidence from that

hospitalization.

Communication between you and

your representative, however, is privileged

information and does not have to be given

to the SSA. Furthermore, any investigation

your representative makes into the merits

of your claim is protected information,

including discussions between your

representative and your doctor regarding

the severity of your disorders or your

lawyer’s personal opinion about your

disability. Also note that neither you nor

your representative is required to request an

opinion from any doctor about the medical

severity of your condition. However, if you

or your representative does ask your doctor

for a “treating source opinion” on the

severity of your condition, then you must

submit the response to the SSA.



2. Timely, Accurate, and

Sufficient Medical Records

Timely, accurate, and sufficient records

from your treating doctors can greatly

reduce or eliminate the need for the SSA to

obtain additional medical evidence, which