Social Security disability cases pose many challenges.

In practice, federal court review of Social Security 

agency decisions differs widely from district to district 

and circuit to circuit. This pocket guide is a primer for 

judges deciding Social Security disability appeals at the 

district court level. It addresses issues that regularly 

arise in these appeals and highlights relevant provisions 

in the U.S. Code, the Code of Federal Regulations, and 

the Federal Register.

Federal Judicial Center

One Columbus Circle NE

Washington DC 20002-8003

fjc.dcn • fjc.gov
FEDERAL JUDICIAL CENTER

POCKET GUIDE SERIES

Social Security Disability Appeals

David A. Sanders

Magistrate Judge

Northern District of Mississippi

Kris Markarian

Legal Editor

Federal Judicial Center

2019

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop educational materials for the judicial branch. While 

the Center regards the content as responsible and valuable, this publication does not 

reflect policy or recommendations of the Board of the Federal Judicial Center.
FIRST PRINTING
iii

Contents

Foreword, v

Preface, vii

Overview, 1

 Focus and Scope of District Court Review, 1

Reviewing the Commissioner’s Final Decision: The Five-Step

 Process, 5

 Step 1: Substantial Gainful Activity and Onset Date, 5

 Step 2: Severe Impairment, 7

 Step 3: Listed Impairments, 10

 Residual Functional Capacity, 11

 Step 4: Whether the Claimant Can Perform Past Relevant Work, 12

 Argument 1: Failure to Adequately Develop the Record, 13

 Argument 2: Treating Physician Rule, 14

 Argument 3: Pain, 17

 Argument 4: Harmless Error, 19

 Step 5: Other Work that Exists in the National Economy, 19

Attorney’s Fees, 23

 Social Security Act, 23

 Equal Access to Justice Act, 24

Appendix: Definitions and Core Concepts, 26

v

Foreword

This pocket guide arose from the dedication of Magistrate Judge

David A. Sanders (N.D. Miss.). It began as an outline accompanying 

his presentations at Federal Judicial Center workshops for U.S. magistrate judges and federal judicial law clerks. After receiving feedback 

from members of the judiciary about drastic increases in Social Security disability caseloads, the Center asked Judge Sanders to expand his 

outline into a guide for district and magistrate judges.

I am pleased to present this pocket guide as a resource to the judiciary and hope that it helps judges who are handling Social Security 

disability cases.

John S. Cooke

Director, Federal Judicial Center

vii

Preface

This pocket guide is a primer on Social Security disability appeals filed 

in U.S. district courts. It addresses issues that regularly arise in these 

appeals and highlights relevant provisions in the U.S. Code, the Code 

of Federal Regulations, and the Federal Register.

I designed this material over the past ten years as I sought to resolve issues that rely on what I viewed as obscure federal regulations. 

As I gained more expertise, I learned that although many core legal 

concepts in Social Security disability seem straightforward, applying 

these concepts is not. Social Security law is not uniform; it varies from 

circuit to circuit. Each case is unique and offers a new learning opportunity. Please keep in mind that I am located in Mississippi, and this 

guide therefore relies heavily on the law developed in the Court of 

Appeals for the Fifth Circuit. The law in your circuit may or may not 

mirror the law in my circuit.

For additional help, the Appendix provides definitions for several 

terms and frequently used concepts in the law of Social Security disability.

I would like to thank Judge James L. Robart (W.D. Wash.), Magistrate Judge Brian Tsuchida (W.D. Wash.), and Magistrate Judge Steven E. Rau (D. Minn.) for their invaluable assistance in reviewing the 

drafts of this pocket guide. I would also like to thank Magistrate Judge 

Tim A. Baker (S.D. Ind.) for his help over the years.

Hon. David A. Sanders

U.S. Magistrate Judge

Northern District of Mississippi

1

Overview

This pocket guide is a primer for judges deciding Social Security disability appeals at the district court level. It is not a comprehensive 

guide on the substantive law or on case management and does not 

attempt to provide citations from every circuit. The U.S. Code provides for federal court review of Social Security agency decisions. In 

practice, that review differs widely from district to district. Judges are 

therefore encouraged to consult the law in their circuit and their local 

procedural rules. 

Focus and Scope of District Court Review

Social Security disability cases are baffling to many judges and lawyers. Disability claimants typically initiate review by filing a civil complaint. Procedurally, a Social Security disability case is more akin to 

an appeal. This is because, except in limited circumstances, 42 U.S.C.

§ 405(g) requires the court to enter judgment upon the pleadings and 

transcript of the administrative record.

Exactly what is before the court when a disability case is filed is 

worth considering. Under section 405(g), federal courts are authorized to review the final decision of the commissioner of Social Security. In most cases, the commissioner’s final decision is the administrative law judge’s (ALJ’s) written decision. What is usually before the 

district court is whether the decision of the ALJ should be affirmed or 

should be remanded for further administrative proceedings or for an 

award of benefits.

Federal courts review the commissioner’s decision under the substantial evidence standard.

1 So Social Security opinions invariably 

begin with an explanation of the standard.2 It is imperative for judges 

to remember that they are not reweighing evidence but determining 

whether substantial evidence supports the commissioner’s opinion.

 

1. See, e.g., Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 

2012); McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011); Washington v. 

Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).

2. See, e.g., Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); Craig v. 

Chater, 76 F.3d 585, 589 (4th Cir. 1996).
Social Security Disability Appeals

2

An agency’s factual findings must be upheld if supported by substantial evidence in the record.

Here is an example of how the substantial evidence standard is 

explained in an opinion from the Fifth Circuit:3

Our review of the Commissioner’s decision, like the district 

court’s review, is limited under 42 U.S.C. § 405(g) to two inquiries: (1) whether substantial evidence of record supports the 

decision; and (2) whether the decision comports with proper 

legal standards. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 

1994). “Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a 

conclusion; it must be more than a scintilla, but it need not be 

a preponderance.” Anthony v. Sullivan, 954 F.2d 289, 295 (5th

Cir. 1992). It is the role of the Commissioner, and not the 

courts, to resolve conflicts in the evidence. Brown v. Apfel, 192 

F.3d 492, 496 (5th Cir. 1999). As a result, this court “cannot 

reweigh the evidence, but may only scrutinize the record to determine whether it contains substantial evidence to support the 

Commissioner’s decision.” Leggett v. Chater, 67 F.3d 558, 564 

(5th Cir. 1995). A finding of no substantial evidence is warranted only “where there is a conspicuous absence of credible 

choices or no contrary medical evidence.” Johnson v. Bowen, 

864 F.2d 340, 343–44 (5th Cir. 1988) (internal quotation marks 

and citation omitted).

In other words, if the administrative record contains any evidence—

any evidence at all—to support each substantive portion of the ALJ’s 

decision, the decision may be affirmed. Even so, plenty of ALJ decisions will have no evidence to support a portion of the ALJ’s opinion 

and should be reversed and either remanded or awarded benefits—

unless the error was harmless. (More on that later.)

After explaining the substantial evidence standard, Social Security opinions in the federal courts lay out the five steps for determining disability, following the sequential process for determining 

 

3. Ramirez v. Colvin, 606 F. App’x 775, 777 (5th Cir. 2015).
Overview

3

whether a plaintiff is disabled under 20 C.F.R. § 404.1520. Judges who 

plan to write detailed opinions rather than rule from the bench may 

want to develop a template to use as a starting point. Both parties will 

do this at the beginning of their briefs as well. Here is a typical introduction to the disability determination in a district court opinion:

In determining disability, the ALJ follows a five-step sequential 

evaluation process. The burden to prove disability rests on the 

claimant in the first four steps of this process and shifts to the 

commissioner at step five. First, the claimant must prove he is 

not currently engaged in substantial gainful activity. Second, he 

must prove his impairment is “severe,” in that it significantly 

limits his physical or mental ability to do basic work activities. 

Third, he must prove his impairment is medically equivalent to 

one of the impairments listed at 20 C.F.R. Part 404, Subpart P, 

App. 1. Fourth, he must prove he is incapable of meeting the 

physical and mental demands of his past relevant work. If the 

claimant is successful at all four of the preceding steps, the burden shifts to the commissioner to prove, considering the claimant’s residual functional capacity, age, education, and past 

work experience, that he is capable of performing other work. 

If the commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that 

he cannot, in fact, perform that work.

In short, in most Social Security cases the claimant will be arguing 

that the ALJ erred at one or more of the five steps. The remainder of 

this guide examines the most common arguments made at each step. 

Included is case language related to each argument that may prove 

helpful when considering these arguments.

5

Reviewing the Commissioner’s Final Decision:

The Five-Step Process

Most cases turn on whether the ALJ’s written decision is both supported by substantial evidence and free of legal error. It is critical for 

a judge in the district court to focus on the written decision because 

that is what is before the court for review. Judges should therefore familiarize themselves with the form and content of decisions prepared 

by ALJs. Most ALJ decisions contain the following components:

• An outline of the administrative history of the case. In this 

section, the ALJ sets forth the date the claimant filed claims 

for disability benefits and the type of benefits sought; the 

date the claimant alleged he or she became disabled; that the 

application was denied initially and upon reconsideration by 

the Social Security Administration (SSA); that the claimant 

thereafter requested a de novo hearing before an ALJ; and the 

date the ALJ conducted the hearing and who attended the 

hearing. 

• The five-step sequential evaluation process that all ALJs are 

required to use in making disability determinations. There 

are two noteworthy aspects about this process: 1) the findings made at each step affect subsequent steps and 2) at the 

administrative level, the claimant bears the burden of proving steps one through four,while the commissioner bears the 

burden at step five.4

Step 1: Substantial Gainful Activity and Onset Date5

A claimant cannot be working when he or she applies for disability 

benefits. As an initial matter, to obtain disability benefits, the claimant must therefore establish that he or she is not engaged in “substantial gainful activity.” The Code of Federal Regulations defines

 

4. See, e.g., Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 

2004).

5. See infra Appendix.
Social Security Disability Appeals

6

How to Approach a Social Security Case File

The federal court system received and processed more than 

18,000 Social Security disability cases in fiscal year 2017.6 Social 

Security files can be daunting. This is the order in which I examine every file I receive:

1. Read the transcript of the hearing. Nothing gives you a 

better feel for the case than hearing the claimant explain 

it. The transcript is usually on the docket attached to

the government’s answer to the complaint (under heading 2).

2. Read the ALJ’s opinion. This will give you a better sense of 

the law to be applied in the case.

3. Read the claimant’s brief.

4. Read the government’s brief. (Some claimants’ attorneys 

file rebuttal briefs, but in my experience this is rare.)

5. Read the relevant portions of the medical records, including the consultative examiner’s findings and the medical 

source statements (see infra Appendix). (After having read 

the briefs, I know which portions are relevant, given that 

medical records run hundreds of pages.)

 

6. https://www.ssa.gov/appeals/court_process.html.
The Five-Step Process

7

substantial gainful activity (SGA) as work (usually for pay or profit)

involving significant physical or mental abilities.7 Step one is usually 

not at issue because most claimants are not engaging in SGA when

they file an application for disability benefits. Thus, the claimant will 

usually allege an “onset date” of disability, which, also usually, is the 

last date the claimant engaged in SGA. When there is a step-one issue, 

it usually relates to whether certain work a claimant performed after 

the alleged onset date constitutes SGA. Judges should be mindful that 

not all work is SGA. If the party is ultimately found disabled, this determination could affect the amount of retroactive benefits the claimant could receive.

Step 2: Severe Impairment

After a claimant establishes that he or she is not engaged in SGA, the 

claimant must prove that he or she has a “severe impairment” by 

showing that:

1. He or she suffers from a medically determinable condition, 

or combination of conditions, caused by an anatomical, 

physiological, or psychological abnormality that can be confirmed by medically acceptable clinical and laboratory diagnostic techniques.8

2. The condition is severe. “Severe” simply means the condition significantly limits the claimant’s physical or mental 

ability to do basic work activities.9

3. The condition is expected to persist for at least twelve 

months.10

Step-two issues that judges must address flow from the two different requirements claimants have to meet. In some instances, the 

court must resolve whether the condition is medically determinable. 

For that to be the case, the claimant must show that there is acceptable 

 

7. 20 C.F.R. § 404.1572. See also Perez v. Barnhart, 415 F.3d 457, 461 (5th 

Cir. 2005).

8. See 20 C.F.R. § 404.1508.

9. See id. § 404.1520(c).

10. See id. § 404.1509.
Social Security Disability Appeals

8

medical evidence, such as an opinion by a medical doctor, that establishes the condition.

In other instances, the court must resolve whether substantial evidence supports the findings concerning severity, i.e., whether the impairment (or combination of impairments) caused is so minimal that 

it does not interfere with the claimant’s ability to work. In the Fifth 

Circuit, Stone v. Heckler

11 held that “‘an impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere 

with the individual’s ability to work, irrespective of age, education or 

work experience.’”12 After Stone, the Supreme Court found the severity regulation facially valid in Bowen v. Yuckert.

13 In Anthony v. Sullivan,

14 the Fifth Circuit held that Yuckert did not change the standard 

as set out in Stone.

15 Joining the First, Sixth, and Eighth Circuits, the 

Fifth Circuit said, “Most courts agree that Yuckert does not displace 

prior limitations on the Secretary’s reliance on the severity regulation.”16 Sullivan is a clear, concise, and helpful opinion that explains

this common step-two argument.

In sum, at step two judges should examine whether the ALJ correctly determined the claimant’s medically determinable conditions 

and whether these conditions singly or in combination are severe under the relevant case. Judges should be mindful that in most circuits 

the step-two inquiry is a de minimis standard: a claimant whose arthritic foot hurts when it rains suffers from a “severe” impairment because this condition affects the claimant’s ability to work, even if it is 

not, on its face, disabling. Judges should also be attentive to the impact 

 

11. 752 F.2d 1099 (5th Cir. 1985).

12. Id. at 1101 (quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 

1984)).

13. 482 U.S. 137 (1987).

14. 954 F.2d 289 (5th Cir. 1992).

15. Id. at 294–95.

16. Id. at 295 (citing, as examples, Gonzalez-Garcia v. Sec’y of Health & 

Human Servs., 835 F.2d 1, 2 (1st Cir. 1987); Higgs v. Bowen, 880 F.2d 860, 

863 (6th Cir. 1988); Brown v. Bowen, 827 F.2d 311, 312 (8th Cir. 1987)).
The Five-Step Process

9

of a step-two error. Some step-two errors mandate reversal. For instance, reversal should result if the ALJ erroneously omitted a mental 

condition, such as bipolar disorder, and found that the claimant was 

not disabled without accounting for any mental health limitations in 

determining the claimant’s capacity to perform work. On the other

hand, the same omission might be harmless error if the ALJ, in the 

subsequent steps, discussed bipolar disorder and properly accounted 

for any limitations caused by the disorder in determining the claimant’s capacity to perform work.

Finally, because the ALJ at step two is essentially screening the 

medical evidence for the existence of medical conditions that affect a 

claimant’s ability to perform gainful work, judges should scrutinize a 

determination by the ALJ that the claimant is not disabled at step two. 

When such a finding is made, ask these questions:

1. Did the claimant receive a definite diagnosis of the alleged 

medical condition?17

2. Was treatment recommended for the alleged condition?18

3. Was the condition remedied or controlled by medication?19

4. Was the condition merely mentioned in the medical records? 

(Mention does not establish it as a disabling impairment.)20

5. Did the condition last for fewer than twelve months?

6. Did the claimant raise the alleged impairment during the administrative proceedings?21

 

17. Id.

18. Id.

19. Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988).

20. Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983).

21. Domingue v. Barnhart, 388 F.3d 462, 463 (5th Cir. 2004).
Social Security Disability Appeals

10

Mental Impairment

Mental impairment can be at issue in both steps two and three. 

When a plaintiff alleges mental impairment, the ALJ will look 

to what are usually described as the “paragraph B criteria,” referring to 20 C.F.R. Subpart P, App. 1, § 12.00, “Mental Disorders.”22 At paragraph B, the regulation provides four criteria to 

consider when determining whether a mental impairment is 

severe. The administration looks to determine whether the 

claimant can: 1) understand, remember, or apply information; 

2) interact with others; 3) concentrate, persist, or maintain 

pace; and 4) adapt or manage oneself. To satisfy the paragraph 

B criteria (see infra Appendix), a mental disorder must result in 

“extreme” limitation of one, or marked limitation of two, of the 

four areas of mental functioning. This examination of criteria 

is sometimes called the “special technique.” 

Step 3: Listed Impairments

At step three, the ALJ must determine whether the claimant’s severe 

impairments, singly or in combination, meet the requirements of

a “Listed Impairment” (Listings) (see infra Appendix). A claimant 

who meets the requirements of the Listings is deemed disabled. For 

each type of medical condition, the regulations set forth specific requirements that the claimant must meet. The requirements must be 

met for a claimant to be found disabled under the Listings.

It is important to note that a Listing determination is not an inquiry into whether the claimant retains the functional capacity to perform work. Rather, it is an inquiry into whether the claimant has 

shown that he or she meets the requirements set forth in the regulations. For example, a claimant is presumed disabled under the Listing 

if his or her best corrected vision is 20/200. If the evidence establishes 

 

22. See https://www.ssa.gov/disability/professionals/bluebook/12.00-

MentalDisorders-Adult.htm.
The Five-Step Process

11

this visual limitation, then the claimant is deemed disabled, notwithstanding the fact that the claimant conceivably could perform some 

types of gainful work activity.

Because a claimant is automatically deemed disabled under the 

Listing, meeting the requirements of a Listed Impairment is difficult. 

Social Security Listings are organized in fourteen categories related to 

various body systems. When a Listing issue arises, a judge should review the Listing as defined in the regulations. At first blush, the Listings might appear to be written in difficult-to-understand “C.F.R.-

speak.” But as you gain familiarity, you may find determining 

whether the claimant’s severe impairment meets the requirements of 

the Listings to be fairly straightforward. This is a result of how the 

Listings were created to expedite the claim process for people who are 

clearly disabled.

In most cases filed in the district court, step three is not at issue. 

This is a consequence of the stringent requirements that a claimant 

must meet. Even a very limited claimant will not be deemed disabled 

at step three unless the claimant’s severe impairments meet each and 

every requirement set forth under the governing Listings regulations.

Residual Functional Capacity.

23 If the ALJ finds that the claimant 

has severe impairments that do not meet the requirements of the Listings, the ALJ must then determine the claimant’s residual functional 

capacity (RFC), i.e., the limitations the claimant’s impairments impose on the claimant’s ability to perform gainful work activity. In essence, the claimant’s RFC is simply the SSA’s determination of what, 

precisely, gainful work activities the claimant can or cannot do.

In determining a claimant’s RFC, the ALJ is required to consider 

all relevant evidence, including medical records and opinions, records 

and opinions of “other sources” (e.g., nurses), and the testimony of

the claimant and the lay witnesses. This evidence may be voluminous, 

so it is important to review the ALJ’s opinion, the hearing transcript, 

and the parties’ briefs. That will help you focus on the specific portions of the records that are both relevant and critical in reviewing the 

ALJ’s written decision.

 

23. See infra Appendix.
Social Security Disability Appeals

12

A typical RFC reads like this:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a limited range of light work as defined in 20 

C.F.R. 404.1567(b) and 416.967(b). He is able to lift and carry 

20 pounds occasionally and 10 pounds frequently but can only 

lift and carry 10 pounds with his right upper extremity. He can 

walk and stand 6 hours and sit 6 hours in an 8-hour work day, 

can frequently climb stairs, but can never climb ropes, scaffolds, or ladders. He can frequently engage in climbing, balancing, stooping, crouching, and kneeling but can only occasionally crawl. He can never push or pull with his right upper 

extremity, and he cannot reach and handle objects overhead

with his right upper extremity. Because of chronic pain and the 

potential side effects of medication, he can only do jobs that do 

not demand attention to details or that do not involve complicated tasks or instructions.

Step 4: Whether the Claimant Can Perform

Past Relevant Work

At step four, the ALJ must determine whether the claimant has performed past relevant work, exactly what jobs this involved, and 

whether the claimant retains the RFC to continue performing past 

relevant work. If the ALJ finds that the claimant has no past relevant 

work history, the ALJ will proceed to step five to determine whether 

there are other jobs the claimant can perform. If the ALJ finds that the 

claimant has past relevant work history, however, the ALJ normally 

will call a vocational expert (VE)24 to testify whether the claimant, 

with the RFC the ALJ has determined, can perform the claimant’s past 

relevant work. If the VE testifies that the claimant can perform his or 

her past relevant work, then the ALJ will find the claimant not disabled at step four. If the VE testifies that the claimant cannot perform 

his or her past work, the ALJ must move to step five.

 

24. See infra Appendix.
The Five-Step Process

13

Let’s examine some of the arguments that are made at step four. 

The types of arguments vary, depending on the district.

Argument 1: Failure to Adequately Develop the Record. This is 

the most common argument. The claimant argues, among other 

things, that the ALJ erred by failing to develop the record adequately. 

Essentially, the claimant is saying that there is more evidence out 

there that would show that she is disabled and that the ALJ was obligated to seek and obtain this evidence. The government will respond 

that it is the claimant’s burden to show that she is disabled. Both are 

right to an extent.

For instance, courts repeatedly point out that the ALJ has a duty 

to develop the record before determining whether the claimant is not 

disabled. See, e.g., Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). 

But just as often, the courts point out that the claimants bear the burden of proof through step four. See, e.g., Audler v. Astrue, 501 F.3d 

446, 448 (5th Cir. 2007).

So, which is it? Does the ALJ have a duty to develop the record, or 

is it the claimant’s burden? The C.F.R. is not much help in this instance:

In general, you are responsible for providing the evidence we 

will use to make a finding about your residual functional capacity. However, before we make a determination that you are 

not disabled, we are responsible for developing your complete 

medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to 

help you get medical reports from your own medical sources.

§ 404.1545(a)(3).

Again, which is it? Is the claimant responsible for providing evidence, 

or will the SSA develop the medical history? This answer is tough because often the claimant will not have much money and will have limited medical records. But it is the claimant’s burden, right? Here are 

some cases to think about:

• The obligation to develop the record “is triggered only when 

there is ambiguous evidence or when the record is 
Social Security Disability Appeals

14

inadequate to allow for proper evaluation of the evidence.” 

Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001).

• “The ALJ’s duty to investigate ... does not extend to possible 

disabilities that are not alleged by the claimant [typically in 

the initial application] or to those disabilities that are not 

clearly indicated on the record.” Leggett v. Chater, 67 F.3d 

558, 566 (5th Cir. 1995).

• A claimant’s “isolated comments” are insufficient, without 

further support, to “raise a suspicion” of an impairment. 

Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989).

Although these cases do not give a complete answer, they can help 

the judge perform something of a balancing test when faced with the 

argument that the record was not adequately developed.

Argument 2: Treating Physician Rule [repealed effective March 

27, 2017]. On January 18, 2017, SSA published final rules, Revisions 

to Rules Regarding the Evaluation of Medical Evidence.25 These revisions repealed the Treating Physician Rule. For cases filed on or after 

March 27, 2017, the longstanding Treating Physician Rule will no 

longer be applied. For years, one of the most common issues before 

adjudicators concerned the Treating Physician Rule, which essentially 

provided that, absent contrary authority, the opinion of a treating 

physician should be given “controlling weight.” The concept of attributing weight to opinions from various healthcare providers, however, 

was cumbersome. The new rules have resulted in a change in analysis.

According to revised regulations, “weight” is no longer to be considered. This means that adjudicators no longer have to determine the 

amount of weight to assign a particular opinion from a treating physician, consultative examiner,26 or other source. The qualifiers “little” 

weight, “some” weight, and “great” weight were vague and difficult to 

 

25. 82 Fed. Reg. 5844 (2017). See https://www.ssa.gov/disability/professionals/bluebook/revisions-rules.html.

26. See infra Appendix.
The Five-Step Process

15

address. (The only clear standard for determining weight was “controlling weight,” to be accorded, at times, to treating physicians.27)

Adjudicators are now to “consider” the “persuasiveness” of opinions from all medical sources.28 “All” includes both acceptable and 

unacceptable medical sources. This does not mean unacceptable medical sources can be used to establish a medically determinable impairment. But practically speaking, unacceptable medical sources may 

play a more vital role in decisions than they did prior to the revisions 

of the medical evidence rules.

What is the definition of “persuasive”? The administration explains that it will consider five factors:

• supportability

• consistency

• relationship with the claimant, combining the current examining and treatment factors (length of relationship; frequency of examinations; purpose and extent of treatment relationship; and examining relationship)29

• specialization

• other factors, such as familiarity with other evidence in the 

claim or an understanding of disability policies and evidentiary requirements.30

Although “consistency” is listed as one of the most important factors in evaluating persuasiveness, the administration concedes that 

the term is hard to define. According to the revisions, “consistency” 

will be defined here “the same as the plain language and common definition.”31 We can expect to see language similar to what we have seen 

in the past, such as whether reports from various providers differ 

 

27. Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000).

28. 20 C.F.R. § 1520c(a).

29. Id. §§ 404.1520c(c)(3), 416.920c(c)(3).

30. Id. §§ 404.1520c(c), 416.920c(c).

31. 82 Fed. Reg. 5854 (Jan. 18, 2017), Comment, available at

https://www.federalregister.gov/documents/2017/01/18/2017-00455/revisions-to-rules-regarding-the-evaluation-of-medical-evidence.
Social Security Disability Appeals

16

substantially or whether reports from the same provider may be internally inconsistent.

The administration also helpfully points out that when a treating 

source sees a patient over an extended time period, the severity of the 

patient’s impairments may fluctuate, and the administration “will 

consider the evidence in the claim that may reflect on this as part of 

the consistency factor as well.”32

Another issue that might pose difficulty for adjudicators is the 

meaning of the term “considered.” The administration revised 20 

C.F.R. §§ 404.1520c(b)(1) and 416.920c(b)(1) to provide that rather 

than merely consider medical opinions, adjudicators will now articulate how they considered the medical opinions. It “expect[s] that the 

articulation requirements in these final rules will allow a subsequent 

reviewer or a reviewing court to trace the path of an adjudicator’s reasoning.”33 But the administration left intact that adjudicators are not 

required to articulate individually how they considered each medical 

opinion when a medical source provides multiple opinions.34 Nor are 

adjudicators required to explain how they considered the other factors besides consistency and supportability when they articulate their 

consideration of medical opinions.35 Those other factors, including 

the relationship with the claimant, must be articulated only if there 

are two or more conflicting but equally persuasive medical findings 

on the same issue that are equally wellsupported and consistent.36The 

administration points out that “[i]t is not administratively feasible for 

us to articulate how we considered all of the factors for all of the medical opinions and prior administrative medical findings in all 

claims.”37

 

32. Id.

33. 82 Fed. Reg. 5858 (Jan. 18, 2017).

34. 20 C.F.R. §§ 404.920c(b)(1), 416.1520c(b)(2).

35. Id. §§ 404.1520c(b)(2), 416.920c(b)(2).

36. Id. §§ 404.1520c(b)(3), 416.920c(b)(3).

37. 82 Fed. Reg. 5856 (Jan. 18, 2017).
The Five-Step Process

17

Finally, as to nonmedical sources, adjudicators will have discretion as to whether they even have to discuss such opinions.38 Nonmedical sources include the claimant, educational personnel, family 

members, caregivers, friends, neighbors, employers, and clergy.

Argument 3: Pain. Very often a claimant alleges that he or she is 

in pain. Pain is a symptom of an impairment. SSA defines symptoms 

as those alleged impairments described by the claimant. Many claimants will tell the ALJ that they are in enormous pain, though there is 

little objective medical evidence to support their allegations. This can 

be a tricky area, and SSA drafted a regulation to address it. To begin, 

read 20 C.F.R. § 404.1529. Then review Social Security Ruling 16-3p, 

which makes clear that decision makers are to look at the medical records and other factors when evaluating a claimant’s symptoms.39 Finally, read the Eighth Circuit’s earlier decision in Polaski v. Heckler,

40

which largely uses the same reasoning as the regulation and which the 

Eighth Circuit has affirmed repeatedly.

In the end, the question boils down to three things. First, there 

must be an impairment (physical or mental) that can be shown by 

medically acceptable techniques. In other words, a claimant cannot 

be found disabled based on his or her subjective complaints of pain 

alone. There must always be some medical evidence. Second, the impairment must be reasonably expected to produce the claimant’s pain. 

And third, the intensity, persistence, and limiting effects of the pain 

must demonstrably affect the claimant’s ability to work. Showing that 

pain affects one’s ability to work is a tough call because everybody 

feels pain in different ways. As a result, the ALJ needs to listen to the 

claimant’s explanation with an ear to

1. the individual’s daily activities

 

38. 20 C.F.R. §§ 404.1520c(d), 416.920c(d).

39. SSR 16-3p (March 28, 2016). But decision makers are not to consider 

the claimant’s “character” or whether they see him as a “truthful” person as 

part of the evaluation. See the Appendix, infra, for definition of Social Security Rulings (SSRs).

40. 739 F.2d 1320 (8th Cir. 1984).
Social Security Disability Appeals

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2. the location, duration, frequency, and intensity of the individual’s pain

3. factors that precipitate and aggravate the symptoms

4. type, dosage, effectiveness, and side effects41 of any medication the individual takes or has taken to alleviate pain

5. treatment, other than medication, that the individual receives or has received for relief of pain

6. any measures, other than treatment, that the individual uses 

or has used to relieve pain

7. any other factors concerning the individual’s functional limitations and restrictions due to pain (this often will be evidence related to a claimant’s attempts to return to work)

Other factors to consider are the claimant’s relevant work history 

and the lack of objective medical evidence to support his or her complaints.42

Weighing the above, the ALJ decides to what degree the claimant’s symptoms affect his ability to work and then, referring to the 

medical evidence, determines the claimant’s RFC.

In some cases, the ALJ will not have specifically addressed many 

factors. Still, based on the record and the RFC, it is clear that the ALJ 

considered several factors, in which case the decision may be affirmed. 

If the ALJ specifically mentioned the medical records, claimant’s 

work history, side effects of medication, and daily activities, it is likely 

that substantial evidence exists.

Argument 4: Harmless Error. The government will argue harmless error in many instances. So, judges should be familiar with the 

concept and the language the courts typically use. When the 

 

41.In Richmond v. Shalala, 23 F.3d 1441, 1443 (8th Cir. 1994), the claimant never told his doctor that he changed medication and never discussed 

the claimed side effects of the medication with his doctor. The Eighth Circuit 

upheld the ALJ’s decision to discount the complaint, raised for the first time 

at the hearing.

42. See, e.g., Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998).
The Five-Step Process

19

government argues harmless error, simply look to the error and determine whether the error prejudiced the claimant. Then answer the 

question, Is there a realistic possibility, absent the error, the ALJ 

would have reached a different conclusion?

“Procedural perfection in administrative proceedings is not required.” 43 A judgment will not be vacated “unless the substantial 

rights of a party have been affected.”44 To show prejudice, the claimant must point to evidence that would have been adduced and that

could have changed the result.45

Step 5: Other Work that Exists in the National Economy

If the claimant shows at steps one through four that he or she cannot 

perform past relevant work, the burden shifts to the commissioner to 

show that there are sufficient numbers of other jobs in the local or 

national economy that the claimant can perform. The ALJ, at step 

five, will often call a vocational expert (VE) to testify hypothetically 

whether, based on the RFC, the ALJ has determined that there are jobs 

that exist in sufficient numbers in the national economy that the 

claimant can perform. If the answer is yes, the ALJ asks the VE to set 

forth what jobs the claimant can perform. These could be anything 

from “carpenter” to “x-ray technician” but will often be as basic as 

“ticket taker” or “parking lot attendant.” Examples come from the 

Dictionary of Occupational Titles.

46

Following is an example of a typical exchange between the ALJ 

and VE.

Q. Let me give you some hypotheticals. I want you to assume a 

hypothetical person of the same age, educational background, and work history as the claimant. I want you to assume that this hypothetical individual retains the residual 

 

43. Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1998) (quoting Mays v. 

Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)). See also Mercer v. Birchman, 

700 F.2d 828, 835 (2d Cir. 1983).

44. Morris, 864 F.2d at 335 (quoting Mays, 837 F.2d at 1364).

45. Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996).

46. See infra Appendix.
Social Security Disability Appeals

20

functional capacity to perform work as reflected in medical 

source statement 33F. Specifically, the doctor indicated that 

the claimant could never lift or carry; that he could sit, 

stand, and walk for a total of one hour during an eight-hour 

day; that he could occasionally reach, handle, finger, feel, 

and push or pull with his upper extremities; and that he 

could occasionally operate foot controls using his right foot. 

The doctor also indicated that he could occasionally climb 

stairs and ramps and occasionally balance; that he could 

never climb ladders or scaffolds, stoop, kneel, crouch or 

crawl; that he could never work at unprotected heights or 

around moving mechanical parts; that he could never be exposed to humidity and wetness, dust, odors, fumes, pulmonary irritants, extreme cold, heat, or vibrations; and that he 

could occasionally operate a motor vehicle. The doctor also 

stated that he must avoid all stressful and anxiety-promoting areas. Okay. Given that residual functional capacity, 

would the claimant be able to perform any of his past relevant work?

A. No, Your Honor.

Q. Would he be able to perform any other work in the local or 

national economy?

A. No, Your Honor.

Q. Okay. Let me give you another hypothetical. I want you to 

also assume that the hypothetical person of the same age, 

educational background, and work history as the claimant 

can perform work at all exertional levels. This person is restricted to simple, unskilled, routine, repetitive work involving one- or two-step job-task instructions. This individual 

cannot perform work that requires interactions with the 

general public and more than occasional collaborative interactions with co-workers and supervisors. This individual

must also avoid working at unprotected heights or around 

dangerous moving machinery. Now, given that residual 

functional capacity, would such an individual be able to perform any of the claimant’s past relevant work?

A. No, Your Honor.
The Five-Step Process

21

Q. Would such an individual be able to perform any other work 

in the local or national economy?

A. Yes, Your Honor.

Q. And what other work could such an individual perform?

A. One example is a small-products assembler. That job is classified as light. It is unskilled. The Dictionary of Occupational 

Titles (DOT) numberis 739.687-030 with 200,000 employed 

nationally and 1,000 locally. Another example is a laundry 

worker. That job is classified as medium, unskilled. The 

DOT number is 361.685-018 with 100,000 employed nationally and 1,000 locally. (See Appendix for more on DOT.)

In the example above, the claimant may argue that the evidence shows 

he could never perform any job with a classification above sedentary, 

and the jobs provided by the VE were classified as light and medium, 

respectively. These arguments, of course, point to the evidence itself, 

and you must decide whether substantial evidence supports the ALJ’s 

finding that a claimant could perform the job(s) provided by the VE.

If the answer is, “There are no other jobs in the local or national 

economy the claimant could perform,” the ALJ might add or remove 

limitations from the initial RFC used in the hypothetical questions 

and ask the VE whether the opinion would change. Eventually, the 

ALJ will alter the description of the claimant’s RFC so that the expert 

will answer yes.

Because the VE testifies at a hearing at which the claimant and 

her attorney are usually present, the claimant’s counsel is entitled to 

question the VE. Counsel will often ask the VE hypothetical questions 

based on counsel’s views of the claimant’s limitations. This usually 

results in the VE testifying that the claimant could not perform any 

jobs.

At this point, the ALJ closes the hearing and issues a written decision that often closely (or precisely) tracks the RFC the ALJ formulated and that tracks the VE’s answer to the ALJ’s hypothetical question that resulted in VE testimony that the claimant could perform a 

job in the national economy.

23

Attorney’s Fees

If a court rules that a decision should be reversed or remanded, the 

next issue to arise will be whether to award attorney’s fees. There are 

two statutes that address fees: the Social Security Act and the Equal 

Access to Justice Act (EAJA). 

Social Security Act

Any attorney’s fees received pursuant to the Social Security Act, 42 

U.S.C. §§ 406(a) and (b), are paid out of the client’s back-pay benefits 

and are often contingency-fee contracts. Fees earned at the agency 

level can be for no more than 25% of the back-pay benefits or $6,000, 

whichever is less. § 406(a). There is an argument that once a case has 

gone to the Appeals Council47 or further, the $6,000 cap no longer applies if that attorney has what is called a “two-tiered contract.” Nevertheless, fees earned in federal court must be reasonable and can be 

for no more than 25% of the back-pay benefits according to the Act.

§ 406(b). 

Although attorney’s fees are capped at 25% under section 406, 

they must be reasonable. In Gisbrecht v. Barnhart,

48 the Supreme 

Court held that attorneys can use contingency-fee contracts in Social 

Security cases and explained how to determine whether the amount 

sought is reasonable. The Court said that the lodestar method—hours 

x reasonable hourly fee = total amount—could not be used, as is done 

under EAJA. But one factor to consider, the Court said, was the 

amount of the fee compared to the amount of time expended—which 

of course sounds like lodestar. The result has been that courts use 

what is known as the “reverse lodestar” method, in which the amount 

sought is divided by the hours to get the hourly rate. Two factors can 

then be considered: the amount compared to the time, and whether 

the attorney was responsible for any unnecessary delay. 

As to the time for filing fees under section 406(b), most courts 

refer to Federal Rule of Civil Procedure 54(d)(2), which provides that 

 

47. See infra Appendix.

48. 535 U.S. 789 (2002). Note: Gisbrecht addresses only section 406 and 

not EAJA.
Social Security Disability Appeals

24

a claim for fees must be made within fourteen days of entry of judgment, absent local rules for time limits on filing a motion for attorney’s fees. The question therefore becomes, How does an attorney ask 

for a percentage of the back-pay benefits when a district court remands a case and no back-pay benefits have been awarded? This does 

not make sense. Many courts look to when the commissioner issues 

the notice of award (NOA) and count fourteen days from there. Practically speaking, however, few courts deny awards just because more 

than fourteen days have passed since the NOA. What courts typically 

do is balance the equities and make sure the time delay is not “per se 

unreasonable.” If the equities favor an award and it was, say, a couple 

of months late, the courts typically award the fees. A clear and helpful 

opinion addressing this issue is Tate v. Colvin.

49 A Fifth Circuit case 

addressing the issue is Pierce v. Barnhart.

50 

Equal Access to Justice Act

Attorney’s fees received pursuant to EAJA § 2412 are paid by the federal government. With EAJA applications, look to the lodestar 

method and determine whether the fee is reasonable. The statute provides for $125 per hour, but there is language that provides for increases in the cost of living as time passes between revisions to the 

statute. There are only two types of remand: sentence four and sentence six.

51 

In Shalala v. Schaefer,

52 the Supreme Court addressed when to file 

for fees under EAJA following a sentence-four remand and ruled that 

the time would be thirty days after the day a judgment—docketed as 

 

49. No. 3:13cv904-DPJ-FKB, 2016 U.S. Dist. LEXIS 21784 (S.D. Miss. 

Feb. 23, 2016).

50. 440 F.3d 657 (5th Cir. 2006). Accord Bergen v. Comm’r of Soc. Sec., 

454 F.3d 1273, 1277 (11th Cir. 2006) (agreeing with Fifth Circuit that Rule 

54(d)(2) “applies to a § 406(b) attorney’s fee claim”). Note that Pierce was 

criticized by Weber v. Astrue, No. 4:10 CV3229, 2012 U.S. Dist. LEXIS 92025 

(D. Neb. July 3, 2012) (holding that counsel seeking fees under § 406 need 

not do so under Rule 54(d)(2)).

51. See infra Appendix.

52. 509 U.S. 292 (1993).
Attorney’s Fees

25

a separate document—became final and unappealable. Because a

judgment becomes final and unappealable sixty days after judgment, 

thirty additional days would give an attorney ninety total days from 

judgment to file for fees. 

In Melkonyan v. Sullivan,

53 the Court addressed when the clock 

begins to tick when the district court remands a matter to the commissioner pursuant to sentence six and the claimant is then found disabled. The Court looked specifically at the intended meaning of “final 

judgment” used in EAJA. It held that Congress’s use of “judgment” in 

section 2412(d)(1)(B)referred to judgments entered by a court of law. 

Thus, the clock for filing for attorney’s fees does not begin to tick 

when the commissioner makes its decision but “after the postremand 

proceedings are completed, the Secretary returns to court, the court 

enters a final judgment, and the appeal period runs.”54

 

53. 501 U.S. 89 (1991).

54. Id. at 102.
26

Appendix: Definitions and Core Concepts

Acquiescence Rulings. SSA issues an acquiescence ruling when a court 

of appeals decision conflicts with an SSA ruling. The acquiescence 

ruling is published in the Federal Register and follows that precedent 

in the circuit from that time forward. 20 C.F.R. §§ 404.985, 416.1485. 

Appeals Council. A claimant whose application was denied can ask 

for a hearing before the ALJ. If the ALJ finds the claimant is not disabled, the next step is to appeal to the Appeals Council, which exists to 

review ALJ decisions. Located in Falls Church, Virginia, the council 

rarely hears oral arguments. If the council affirms the ALJ, the claimant can then file in district court. (Of course, the council can reverse

the ALJ’s decision.) Affirmation is often through a simple form order 

that says something like, “In looking at your case, we considered the 

reasons you disagree with the decision. We found that this information does not provide a basis for changing the administrative law 

judge’s decision.” Little else is usually provided. If a claimant’s attorney submitted evidence to the council that was not submitted to the 

ALJ, the order may state that the council also considered the new evidence. Again, there will be no detailed explanation.

Some claimants’ attorneys will argue that error occurred at the 

hearing level and by the appeals council. (There are numerous issues 

attorneys may raise—far too many to describe here.)

“B Criteria.” When evaluating mental impairments, SSA first determines the degree of functional limitation by looking to the “B criteria,” so named because they are in paragraph B of each listing under 

20 C.F.R. Subpart P, App. 1, § 12.00 (except 12.05). (See box on page 

10.) The ALJ examines these criteria twice: first at step two of disability determination to decide whether an impairment is severe and, if 

so, again at step three to determine whether the claimant meets a listing somewhere at section 12.00. This analysis is described as the “special technique.” See 20 C.F.R. § 404.1520a(d); 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00.
Social Security Disability Appeals

27

Closed Period. A claimant can argue that although he was once disabled and entitled to benefits, he is now recovered. The law provides 

that if the claimant was indeed disabled for a period of at least twelve 

months (or his disability was expected to last at least twelve months), 

then he is also entitled to Social Security benefits for that period. For 

our purposes, whether the claimant is arguing for a closed period is 

not significant. Our analysis is the same.

Consultative Examination (CE). When the ALJ determines that the 

record is insufficient to make a decision, the ALJ may order a CE. A 

treating physician is preferred, but the ALJ may need to look to another examiner. Often, there will be few healthcare providers in the 

area who are willing to act as examiners or are familiar with the procedure. As a result, the same names tend to appear in opinions. All 

examiners must be qualified, and their reports will be in many (perhaps most) of the cases before the magistrate judge or district judge. 

Typically, claimants are examined once. Because examiners are familiar with the process, their reports can be helpful to the ALJ and to the 

judge, since medical records provide little opinion about whether a 

claimant can work. The reports may be called “Medical Source Statements” or “Residual Capacity Forms.” These are simply different 

names for what is essentially the same form.

Dictionary of Occupational Titles (DOT) and Selected Characteristics 

of Occupations (SCO). The DOT is an enormous two-volume set describing virtually every job in the U.S. economy. For each job there is 

a DOT number and a detailed explanation of exactly what such an 

occupation requires. The DOT also provides the exertion and skill 

level for each job. For instance, a small-products assembler has a DOT 

number of 739.687-030. That job is classified as light (exertion level); 

it is unskilled (specific vocational preparation of 2);55 it requires the 

 

55. See infra, definition of Skill Level and Specific Vocational Preparation.
Appendix

28

ability to assemble parts of various materials such as plastic, wood, 

metal, rubber, or paperboard to produce small products like roller 

skates or toys; and there are 200,000 nationally and 1,000 in Mississippi.

The DOT alone may not be enough. SSA also looks at the SCO, a 

companion volume that provides more detailed explanations of the 

various occupations. For instance, the DOT describes the job of venetian-blind assembler as medium work with a specific vocational preparation of 3. See 20 C.F.R. § 404.1520a(d)(1); 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00. It describes the position as “assembl[ing] 

aluminum, plastic, and nylon parts to form venetian blinds, using 

handtools and power tools.” The SCO goes further and explains (using a complicated-looking chart) that a venetian-blind assembler occasionally (up to one-third of the time) needs to crouch and often 

(one-third to two-thirds of the time) needs to handle objects. He will 

also frequently be required to work using near acuity. And he may 

need to withstand a noise intensity level that is moderate, such as that 

in a business where typewriters are used.

Note: The DOT has come under fire as being obsolete. Practically 

the only entity still using it is SSA, which is now in the process of creating a more useful resource, the Occupational Information System 

(OIS). Many now use O*NET, https://www.onetonline.org, finding 

that it provides a more modern description of the occupations than 

the DOT.

Disability Determination Services (DDS). When a claimant first applies for disability benefits at the local level, the office sends the case 

to DDS, the state agency that makes the first decision on the claim for 

benefits. The file is handled by a disability determination agent or

analyst, who writes the claimant’s doctors and hospitals for copies

of medical records. The agent evaluates medical and vocational conditions. A medical doctor reviews the file and determines how the 

claimant’s condition will affect ability to work. DDS then makes a determination based on the evidence in the file. Claimants almost never 

see these agents. A claimant denied at this level can ask for 
Social Security Disability Appeals

29

reconsideration by a different determination agent and medical doctor. If the agency denies reconsideration, the claimant can file for a 

hearing before the ALJ.

The state agents’ opinions are important because some ALJs place 

great weight on them. The agent rarely sees the claimant, and the file 

is almost always incomplete when the agent considers it. ALJ opinions 

that rely on the state agent should be examined closely. I have seen

opinions where an ALJ gave greater weight to the opinion of a state 

agent than that of a treating physician. This would be a rare case indeed that was not reversed.

It is important to understand the difference between the state 

agency medical doctor, who is examining the file and helping make a 

determination at the state agency level, and the consultative examiner. A consultative examiner hired with an order from the ALJ actually examines the claimant. Thus, the consultative examiner’s opinion 

typically receives more weight than that of the state agent, though not 

as much weight as the treating physician’s.

Equal Access to Justice Act. The Equal Access to Justice Act (EAJA)

provides for attorney’s fees to a prevailing party in actions against the 

United States. 28 U.S.C. § 2412. When a plaintiff appears before the 

judge in a Social Security case and the judge remands or awards benefits, the plaintiff’s attorney will then file a motion for his fees to be 

paid under EAJA. Technically, the fees are paid to the plaintiff, who 

may then pay his attorney; the statute and case law make clear that the 

judge’s order should make the award to the party—not the attorney. 

See Astrue v. Ratliff, 560 U.S. 586, 595–97 (2010). EAJA allows for 

only $125 per hour, unless there is “an increase in the cost of living or 

a special factor, such as the limited availability of qualified attorneys 

for the proceedings involved.” § 2412(d)(2)(A). Practically speaking, 

$125 per hour is too low in virtually every district, so the plaintiff’s 

attorney typically asks for more. 

Fees are not often an issue before the magistrate judge. But if the 

judge remands and awards benefits under EAJA, and the ALJ then 

awards benefits to the claimant, the Social Security Act provides that 
Appendix

30

the attorney may receive 25% of the back pay awarded. 42 U.S.C. § 

406. In that event, the attorney may keep whichever award is larger. 

If the back pay is larger, the attorney must return the money paid to 

her by her client after the award of fees under EAJA. 

Exertion Level. In all Social Security cases, the ALJ must determine 

the claimant’s exertion level—what work, in a purely physical sense,

the individual can perform. A claimant’s level may fall into one of five 

work categories: 1) sedentary, 2) light, 3) medium, 4) heavy, or 5) very 

heavy. The explanations for each of these are at 20 C.F.R. § 404.1567. 

Qualifiers are important. “Occasionally” means up to one-third of the 

time; “frequently” means from one-third up to two-thirds of the time;

and “constantly” means two-thirds or more of the time. Note also that 

to determine exertion level, the ALJ considers ability to 1) lift, carry, 

push, pull, and pull/lift; 2) stand, walk, or sit/stand; and 3) use controls like buttons, knobs, pedals, levers, and cranks.

1. Sedentary work. A claimant restricted to sedentary work can 

lift (i.e., “exert force of”) no more than 10 pounds occasionally. According to the DOT, these jobs involve “sitting most 

of the time, but may involve walking or standing for brief 

periods of time.”

2. Light work involves lifting no more than 20 pounds occasionally or 10 pounds frequently. Light work may require 

walking or standing a lot, and even when it requires sitting, 

this may include pushing and/or pulling with arms or legs. 

Anyone who can do light work can do most sedentary jobs 

as well.

3. Medium work involves lifting 20 to 50 pounds occasionally 

and 10 to 25 pounds frequently. Again, anyone who can do 

medium work can do light and sedentary work, too.

4. Heavy work involves lifting 50 to 100 pounds occasionally 

and 25 to 50 pounds frequently.

5. Very heavy work involves lifting in excess of 100 pounds occasionally and 50 pounds frequently.
Social Security Disability Appeals

31

The Grids. The three tables in 20 C.F.R. Part 404, Subpart P, App. 2 

provide grids to help determine disability in various situations. (Note: 

There are no grids for heavy or very heavy work, since SSA assumes 

anyone who can perform such work is unlikely ever to be found disabled.) The grids apply when the claimant has established exertion 

level (see definition, supra), age, education, and work experience. 

Assume that a claimant can perform only sedentary work. Look 

at the first of the three tables, entitled “Residual Functional Capacity: 

Maximum Sustained Work Capability Limited to Sedentary as a Result of Severe Medically Determinable Impairment(s).” After determining that a claimant can perform only sedentary work, look at the 

claimant’s age. Assume the claimant is forty-six years old. Social Security considers 18–49 to be “younger individuals.” Younger individuals are divided into 18–44 and 44–49. Those 50–54 are “approaching 

advanced age” and 55-and-over are “advanced age.” Our forty-sixyear-old claimant therefore is a “younger individual.” Now let’s assume the claimant has a high school degree and that he or she previously worked as a carpenter—in other words, the claimant was semiskilled with some transferable skills. According to the grids—

specifically 201.22—the claimant is not disabled.

Sometimes a claimant’s attorney will argue that his client “grids 

out,” i.e., that the claimant meets the grids and is entitled to benefits.

Hearings, Appeals, and Litigation Law Manual (HALLEX), available

at https://ssa.gov/OP_Home/hallex/hallex.html. SSA’s internal operating procedures manual, HALLEX, contains instructions for ALJs, 

the Appeals Council, and the Office of Appellate Operations Division 

of Civil Actions. 

Some attorneys will point to HALLEX when arguing that the ALJ 

erred when he failed to develop the record fully. Specifically, they will 

refer to § I-2-5-14, which provides that

When an administrative law judge (ALJ) needs additional information about a claimant’s impairment(s), he or she will determine whether the information may be available from a medical source. If the ALJ determines that the information may be 
Appendix

32

available from a medical source, he or she will attempt to obtain the information by following the procedures below.

There is a split among the circuits, however, over the weight of 

HALLEX. The Fifth Circuit has noted that HALLEX is “binding to the 

extent that violations can be grounds for granting relief.” Bellard v. 

Astrue, No. 09-1603, 2011 U.S. Dist. LEXIS 565, at *10 (W.D. La. Jan. 

3, 2011) (referring to Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 

2000)). But the Ninth Circuit describes HALLEX as an internal manual with no legal force. Moore v. Apfel, 216 F.3d 864, 868–69 (9th Cir. 

2000). The Fourth Circuit has not addressed “the meaning and effect” 

of HALLEX. See Calhoun v. Astrue, No. 7:08cv00619, 2010 U.S. Dist. 

LEXIS 4112, at *8 (W.D. Va. Jan. 15, 2010) (noting the split among 

the circuits). The ALJ Bench Decision Checklist is available at https://

www.socialsecurity.gov/OP_Home/hallex/pdf/I-5-117-Att-2.pdf. 

The Listings. An applicant for disability can prove he is unable to 

work in many ways, most often by evidence (such as medical records). 

When the proof is sufficient to remove any discretion from the ALJ, 

the claimant will argue that his condition meets a particular listing. If 

the claimant can indeed show that the condition satisfies all listing 

criteria, he is disabled. If not, the magistrate judge or district judge 

must decide whether the ALJ made the right decision. Familiarity 

with listing terminology will help in deciding cases.

What everyone calls “The Listings” appear at 20 C.F.R Part 404, 

Subpart P, App. 1, also available at https://www.ssa.gov/disability/

professionals/bluebook/listing-impairments.htm. In lay terminology, 

the listings are an enormous catalog of presumptively disabling impairments from which anyone can suffer, broken down into groups 

that relate to various “body systems.” For instance, listing 1.00 addresses the musculoskeletal system, listing 2.00 addresses special 

senses and speech, listing 3.00 addresses the respiratory system, and 

so on. As of today, there are fourteen systems. Each listing begins with 

a general introduction to the body system, followed by explanations 

of specific impairments within that system. For instance, after a long 
Social Security Disability Appeals

33

explanation of the respiratory system at 3.00, listing 3.01 provides a 

“Category of Impairments,” 3.02 shows what is needed to prove a specific impairment (chronic pulmonary insufficiency), 3.03 shows what 

the claimant must prove to show he is disabled as a result of asthma, 

and so on.

Medical Source Statement (MSS). A consultative examiner or treating

physician will often provide an MSS or a Residual Functional Capacity Assessment Form. Both forms are useful because they provide answers to specific questions. For instance, almost all forms have an 

“Exertional Limitations” section with a heading marked “Occasionally,” where the healthcare provider can indicate whether the patient 

can lift less than 10 pounds, 10 pounds, 20 pounds, and so forth. 

Other headings cover ability to stand and/or walk, push and/or pull, 

etc. The forms also have space to rate mental conditions related to 

memory, concentration, social abilities, and so on. Space is made for 

providers to explain assessments.

Onset Date. Onset is the date when SSA determined that the claimant 

became disabled, based on medical records and information from the 

claimant herself. In their applications, claimants will provide an alleged onset date (AOD) that, while not definitive, is considered. An 

onset date can be pivotal because once a claimant becomes entitled to 

benefits, she may receive back pay with her monthly payment. SSA 

may provide back pay up to twelve months before the date the claimant applied for benefits. No claimant is allowed benefits for the first 

five months following his onset date. For example, a claimant who 

applied on December 1, 1999, and was found disabled on March 1, 

2000, but whose onset date SSA determined was actually January 1, 

1999, would get back pay from June 1, 1999, to March 1, 1999.

Residual Functional Capacity (RFC). Defined at 20 C.F.R. § 404.1545, 

RFC is simply the most claimants can do despite their impairments. 

A typical RFC provided by the ALJ is shown supra page 12. In disability determination opinions, RFC assessment occurs after step 
Appendix

34

three, which almost always begins with the following language,setting 

forth the procedure for considering a claimant’s symptoms:

In considering the claimant’s symptoms, the undersigned must 

follow a two-step process in which it must first be determined 

whether there is an underlying medically determinable physical or mental impairment(s)—i.e., an impairment(s) that can 

be shown by medically acceptable clinical and laboratory diagnostic techniques—that could reasonably be expected to produce the claimant’s pain or other symptoms.

Second, once an underlying physical or mental impairment(s) 

that could reasonably be expected to produce the claimant’s 

pain or other symptoms has been shown, the undersigned must 

evaluate the intensity, persistence, and limiting effects of the 

claimant’s symptoms to determine the extent to which they 

limit the claimant’s functioning. For this purpose, whenever 

statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by 

objective medical evidence, the undersigned must consider 

other evidence in the record to determine if the claimant’s 

symptoms limit the ability to do work-related activities.

In other words, the ALJ must look for an impairment, and if it’s one 

that cannot be verified from the medical records, the ALJ will look

at the entire record for evidence consistent with the claimant’s

complaints. Whether there is an underlying impairment is rarely disputed—after all, the ALJ has already found severe impairments at step 

two. What the claimant more often argues is that the ALJ erred in his 

or her evaluation of the claimant’s complaints of pain.

Residual Functional Capacity Assessment form. See Medical Source 

Statement.
Social Security Disability Appeals

35

SSR 16-3p

On March 16, 2016, SSA published SSR 16-3p—Evaluation of 

Symptoms in Disability Claims. The new SSR supersedes SSR 

96-7p—Evaluation of Symptoms in Disability Claims: Assessing 

the Credibility of an Individual’s Statements. It became effective 

on March 28, 2016. The thrust of 16-3p was to eliminate an assessment of “an individual’s overall character or truthfulness in 

the manner typically used during an adversarial court litigation.” It eliminated the term “credibility” but still generally 

tracks the regulatory language of 20 C.F.R. §§ 404.1529 and 

416.929. This includes the familiar two-step process—that is, 

whether the individual has a medically determinable impairment that could reasonably be expected to produce the alleged 

symptoms and the extent to which—given the intensity and persistence of symptoms such as pain—the symptoms limit an individual’s ability to perform work-related activities.

SSR 16-3p lists the sources that should be considered when 

evaluating symptoms, including the claimant’s statements, 

medical sources, and nonmedical sources. SSR 16-3p also spells 

out the seven factors retained from 96-7p, such as daily activities; location, duration, frequency, and intensity of pain; factors 

that precipitate and aggravate the symptoms; the type, dosage, 

effectiveness, and side effects of any medication; treatment, 

other than medication; any measures other than treatment; and 

any other factors concerning an individual’s functional limitations and restrictions due to pain or other symptoms.56

Adjudicators are still to look to the same things, including 

consistency of statements or complaints. They are also to consider frequent or infrequent attempts to receive treatment, and 

if no treatment was sought, the reasons for the failure. In the 

end, it does not appear that 16-3p changed a great deal of substance, but there is clearly an effort to move further away from 

treating the administrative proceeding as an adversarial one.

 

56. https://www.ssa.gov/OP_Home/rulings/di/01/SSR2016-03-di-01.html.
Appendix

36

Sentence-Four Remand and Sentence-Six Remand. Sentence four of 

42 U.S.C. § 405(g), Judicial Review, provides, “The court shall have 

power to enter, upon the pleadings and transcript of the record, a 

judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for 

a rehearing.” In other words, sentence four provides the court the authority to affirm, modify, or reverse the decision of the secretary. The 

district court does this with a final judgment. Sentence six of section

405(g) provides, in relevant part, “The court may, on motion of the 

Commissioner of Social Security made for good cause shown before 

the Commissioner files the Commissioner’s answer, remand the case 

to the Commissioner of Social Security for further action by the Commissioner of Social Security.” As opposed to a sentence-four remand, 

sentence six gives the court the authority to remand without making 

a final judgment. Here, the court does not consider the commissioner’s actions yet but sends it back for further action, most often to 

consider newly available medical evidence.

Skill Level and Specific Vocational Preparation (SVP). In addition to 

physical demands, SSA divides jobs into three skill areas—unskilled, 

semiskilled, and skilled—depending on how long it takes to learn the 

job. This is known as SVP in Social Security-speak. There are nine 

SVP levels, from “short demonstration only” to “over ten years.” Jobs 

with an SVP of 1–2 (one month or less) are unskilled. Those rated 3–

4 (over one month through six months) are semiskilled. Jobs rated 5 

or higher are skilled.

SVP comes into play when the ALJ is considering whether a 

claimant’s previous work experience provides transferable skills. For 

example, a nurse who can no longer perform all her duties because of 

back problems may be able to use some of her skills in a sedentary job 

like examining medical records. It follows that someone with a higher 

skill level in his or her previous job is less likely to be found disabled, 

since more skills mean more job opportunities.
Social Security Disability Appeals

37

Social Security Disability Insurance (SSDI) Benefits and Supplemental Security Income (SSI). Only people who have an earnings history—i.e., who have worked at some time in the past and have essentially paid “premiums” into Social Security—are eligible to receive 

SSDI. Once they stop working, their “insurance” will remain in place 

for a period during which they may apply for benefits. SSI, on the 

other hand, does not require an earnings history and is available only 

for individuals whose financial situation is desperate. To qualify for 

SSI, the claimant must have little or no income and be either 65 or 

older, blind, or disabled. The Code of Federal Regulations provides 

dollar amounts to show who qualifies and who does not. See 20 C.F.R. 

§§ 416.200–269, 416.401–435.

Social Security Rulings (SSRs). Described in 20 C.F.R. § 402.35(b)(1) 

and published in the Federal Register, SSRs explain how SSA is supposed to interpret and apply its own regulations. SSRs may be persuasive, but they lack the force of law. Recently, SSA created an index to the rulings online, https://www.ssa.gov/OP_Home/rulings/

di-toc.html, breaking them into ten areas: 

• Medical

• Vocational

• Substantial Gainful Activity

• Disability, Period of Disability

• Worker’s Compensation

• Special Age 72 Payments

• Totalization Agreements

• Disclosure Under the Privacy Act/Freedom of Information 

Act

• Black Lung Benefits

• Acquiescence

The index makes it much easier to find rulings of interest. For instance, to find out precisely how SSA determines whether an impairment is not severe, look at “Medical” and go down to SSR 85-28, Medical Impairments That Are Not Severe.
Appendix

38

Vocational Expert (VE). A VE is an “expert witness” called by SSA to 

testify at a disability appeal hearing. A VE knows about job availability in the current labor market and the skills needed to perform certain jobs.
About the author

David A. Sanders is a federal magistrate judge for the U.S. District 

Court in the Northern District of Mississippi. He received his law degree from the University of Mississippi School of Law, where he 

served as editor-in-chief of the Mississippi Law Journal.

After graduation, Judge Sanders clerked for Judge David C. 

Bramlette (Southern District of Mississippi) and for Magistrate Judge 

S. Allan Alexander (Northern District of Mississippi). He subsequently joined the U.S. Attorney’s Office in Oxford, Mississippi, where he 

worked as a prosecutor until his appointment to the bench in June 

2008.

Judge Sanders is editor-in-chief of the Federal Courts Law Review, 

an adjunct professor at the University of Mississippi School of Law, 

and a member of the Federal Judicial Center’s Committee on Magistrate Judge Education.
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Magistrate Judge Tim A. Baker, U.S. District Court for the Southern District of Indiana

Judge Duane Benton, U.S. Court of Appeals for the Eighth Circuit

Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee

Chief Judge Barbara J. Houser, U.S. Bankruptcy Court for the Northern District of 

Texas

Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California

Judge George Z. Singal, U.S. District Court for the District of Maine

Judge David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit

James C. Duff, Director of the Administrative Office of the U.S. Courts

Director

John S. Cooke

Deputy Director

Clara Altman

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the 

recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which 

also includes the director of the Administrative Office of the U.S. Courts and seven 

judges elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training for judges and court 

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