Class Thirteen: The Law: Making Sense of Statutes

October 9, 2012

Learn to break up the law into an outline

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.