A reminder: The mental and physical Listings (evaluated at Step 3 of the sequential evaluation process) contain explicit and implicit functional criteria that need to be evaluated by the adjudicator along with the objective medical evidence of severity. (A Step 3 determination of “disabled” should be issued without regard to age, education, or work experience.) But, as I’ve noticed in successful fed court appeals, many times adjudicators evaluate only the medical evidence at Step 3, believing that functional limitations are only part of the Step 4 RFC determination.
Make sure you’re looking for the best evidence of functional impairments, which are the medical records – but functional evidence is often not there. However, treating source opinions and lay testimony can suffice to meet the functionality requirements of the Listings. Depending on the Listing, a rep should present functional impairment evidence in conjunction with a Step 3 analysis. For example, if a mental impairment Listing requires “marked” or “extreme” limitations, you must equate these indefinite terms to the claimant’s functional limitations. If the mental health records are silent on functioning, you should get a treating source opinion on functioning and/or the claimant’s testimony about how (to what extent) his/her mental impairment affects ability to concentrate, focus, persist, handle criticism, relate to others, etc. (The same approach to obtaining functional impairment evidence should be used with physical Listings.)
As early as Step 3, it’s all about how a claimant’s impairments affect functioning. You should be getting medical treating source opinions about the claimant’s functioning whenever possible.
Contributed by James W. Keeter, Esquire.
Mr. Keeter is an Orlando Attorney who specializes in Social Security Disability.