January 25, 2020

The “Functional Capacity” Strategy

The primary question that a Social Security judge or adjudicator will consider when evaluating your Multiple Sclerosis disability claim asks whether you are able to work.   Remember – Social Security defines the term “disability” as the “inability to perform substantial activity because of a medically determinable condition or conditions that has lasted or is expected to last 12 consecutive months or result in death.”

Your job, therefore, involves proving that the symptoms, complications, medication side effects and other limitations arising from your experience with multiple sclerosis have left you unable to reliably perform any type of work.

Disability lawyers use different disability arguments to win MS cases before the Social Security Administration.  The three most common arguments are:

  1. the listing argument for MS – click on the link for more about this approach
  2. the functional capacity argument for MS – discussed on this page, see below
  3. the grid argument for MS – click on the link for more about this approach

A functional capacity argument means that you and your lawyer contend that you have not been and cannot serve as a reliable worker at even a simple, entry level job because of the physical, mental, and emotional limitations that exist in your life because of your multiple sclerosis.

Functional Capacity Arguments – the Most Common Argument Presented at Hearings

Functional capacity arguments are the most common arguments presented to Social Security judges.  Many (although not all) listing level cases have been identified at the initial or reconsider appeal levels.  Rightly or wrongly, disability adjudicators working in state disability adjudication offices have denied your claim leaving the decision about whether you qualify for disability benefits up to a judge.

Social Security administrative law judges are qualified to consider functional capacity arguments.   A good judge will consider how your MS has impacted you and how it affects your capacity to work.  By contrast, the disability adjudicators that evaluate claims at the initial application and reconsideration appeals are looking for “black and white evidence” of a listing level impairment.  Adjudicators are not trained or authorized to make functional capacity evaluations.

Functional Capacity Checklist Makes it Easy for Your Doctor to Help You

Experienced disability lawyers often use functional capacity checklist forms to support their arguments.   These forms are presented to your treating doctor and make it easy for your doctor to identify the various activity and mental limitations that affect you and keep you from working.   Lawyers often call these forms “RFC forms” – RFC stands for “residual functional capacity,” which is the legal term that Social Security uses to describe the limitations in your capacity to function.

A good functional capacity form helps your doctor translate your medical issues into specific work limitations.   Most judges will assign a great deal of weight to the opinion of a treating doctor who has seen you for an extended period of time.   The RFC form uses the work capacity language that judges are concerned with and speaks to job performance and reliability – the main issues in your case.

Most experienced disability lawyers have created their own functional capacity forms that they use in multiple sclerosis disability cases.  If you would like a case review from such an experienced disability lawyer, please fill out the “case evaluation’ form on the right.