Having structured out our argument on the first issue (Failure to give controlling weight) we need to graph out our second issue: Failure to properly weigh the medical opinions. To be prepared for this class please review the law that the ALJ must follow in weighing the medical opinions, as well as the Regulatory Findings the ALJ made consistent with those factors.
We will also need to review the Exhibits to compare the ALJ's Regulatory Findings with what is actually in the Exhibits.
October 22, 2012 Tuesday's Class we will go over your findings after reviewing the Exhibits. We will also outline the Appeal Argument and begin to flesh out our theme and arguments.
October 18, 2012 We will begin to outline our appeal based upon the ALJ's Order, our legal research, and factual research. Major assignments will be given so please do not be absent.
We have covered three items to improve your writing:
(1) Eliminate Passive Voice - using it only with due deliberateness.
(2) Focus on sentences containing one or more of the Four Horsemen of Bad Writing: It, of, in, and has/have.
(3) Important Lines. This step took three steps - (1) Looking at the first lines of each paragraphs. Do they flow and adequately summarize your paper. (2) If not then choose a corresponding number of important lines of your paper. Of the hundred - perhaps hundreds of - sentences - which are the twelve to fifteen that you would keep to express the sum and substance of your paper. (3) Reorganize your lines so that reading them from start to finish will give the reader a proper understanding of your paper.
Now we will cover the fourth technique to improve your writing.
(4) Outline your paper, starting with your theme sentence. The list the items in order that either support your argument, or tell your story. Once you have an acceptable cogent outline - then rearrange your lines in that order, creating new lines as necessary, and use your outline to structure your important lines.
In Paper Chase, the classic movie about the first year of Harvard Law School - the study group spends all year trying to reduce the mass of cases into a cognizable summary called an outline.
Creating a proper Outline will permit you to understand the different prongs or flow of a law, as well as target the critical elements that must be present to satisfy the law. Once you know what the law requires - you will be able to focus on developing the necessary facts.
EXAMPLE
The ALJ in Social Security must follow a particular course in developing an RFC for Doug. This outline is set forth in 20 CFR 404.1527(c) which reads:
(c) How we weigh medical opinions. Regardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source's opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.
(i) Length of the treatment relationship and the frequency of examination. Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source.
(ii) Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain. When the treating source has reasonable knowledge of your impairment(s), we will give the source's opinion more weight than we would give it if it were from a nontreating source.
(3) Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion. Furthermore, because nonexamining sources have no examining or treating relationship with you, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and other examining sources.
(4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.
(6) Other factors. When we consider how much weight to give to a medical opinion, we will also consider any factors you or others bring to our attention, or of which we are aware, which tend to support or contradict the opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that an acceptable medical source has, regardless of the source of that understanding, and the extent to which an acceptable medical source is familiar with the other information in your case record are relevant factors that we will consider in deciding the weight to give to a medical opinion.
Looking at the above - it seems a huge mass of text. We can better understand it if we reduce it down to an outline as follows:
Legal Memo
ISSUE
How Social Security
Evaluates Medical Opinions in finding the Residual Functional Capacity of a
Claimant.
I.Treating Doctor’s Opinion will be given controlling weight if:
a.Opinion is well-supported by Medically
acceptable clinical and laboratory technigues and
b.Is not inconsistent with the other
substantial evidence in the record.
See 20 C.F.R. 404.1527
(c)(2).
When the Treating Physician’s opinion is not given
controlling weight then Social Security will apply the following factors:
II.Evaluation of Medical Opinion (when controlling
weight is not given). Social Security
will consider:
a.Length of Treatment
b.Frequency of examination. See 20
C.F.R. 404.1527 (c)(2)(i)
c.Nature and Extent of Treatment Relationship
i.Kinds
and extent of examinations
ii.Testing
performed or ordered from specialists and independent laboratories. 20
C.F.R. 404.1527 (c)(2)(ii)
d.The opinion is explained and supported –
particularly with medical signs and laboratory findings. 20
C.F.R. 404.1527 (c)(3)
e.Specialty of the physician 20
C.F.R. 404.1527 (c)(5)
f.Other miscellaneous factors
i.The
understanding of the medical source of Soc. Sec. disability programs.
ii.Extent
to which the medical source is familiar with the other information in the case.
October 2, 2012 First you do the legal research. This helps you identify the sort of facts that will be relevant to the resolution of your issue. Second, you will do the factual research. Third - you must create a theme.
Take out a blank piece of paper and write at the top –
“What is this case all about?” This is
the theme. Forget order, organization,
importance and write down everything that comes to mind. When the ideas slow. STOP.
This process is called brainstorming and webbing. Please click on this link for an excellent method of developing themes. Color coding is also helpful to develop themes as well.
With the premise formed and ever in the playwright’s mind, the story has cohesion. To help you develop your theme, remember that a theme should be broad and encompassing and should emphasize the most telling fact. It also must sound fair, take the offensive, and suggest resolution. – Gary Kinder
A good theme for a legal paper must show why the case is important – what if anything turns on the outcome – either for the parties or for some larger community. Distill your central
passage into compelling language that shows the judge what’s at stake. In a motion or trial brief, your theme will occupy a key paragraph - often the first substantive paragraph of the
argument.
Your theme should be put so simply that the grocery cashier would not only understand it upon one hearing, but also be able to express an opinion as to what the proper resolution would be.
Developing a theme is a creative skill. Remember that creativity requires failure - so be prepared to try, and try, and try. A good theme will encompass the following: (1) Why the issue is important; (2) What the proper solution or response should be; and (3) convey the fairness of your position.
