Social Security Disability: Listing of Impairments Explained by a New York Social Security Disability Attorney
One of the quickest ways to qualify for Social Security disability benefits is to have an impairment that fits within the Social Security Administration’s Listing of Impairments. The listed impairments are spelled out in the regulations and if your condition is listed, you may be deemed automatically eligible for benefits. Learn more about what to expect with a disability evaluation under Social Security below.
How the SSA Determines Eligibility for Disability Benefits
The SSA typically engages in a five-step sequential evaluation process to determine whether someone is eligible for benefits. A New York Social Security disability lawyer can tell you that this five-step sequential evaluation process generally consists of:
- Substantial Gainful Activity. If you are healthy enough to currently engage in substantial gainful activity, you may be deemed ineligible for benefits;
- Severe Impairment. The impairment that you suffer must be severe;
- Listed Impairment. As mentioned above, if your impairment meets a listed impairment, you may be deemed eligible for benefits without having to go through steps four and five;
- Past Relevant Work. If you are able to perform jobs that you held in the past, you may be ineligible for benefits; and
- Ability to Perform Other Types of Work. If you are able to perform other jobs widely held in the economy, you may be ineligible for benefits.
Overview of Listed Impairments
The Social Security regulations provide a long list of over 100 types of impairments. A New York Social Security disability lawyer can tell you that the general categories of impairments covered by the regulations include:
- Cardiovascular conditions;
- Digestive impairments;
- Immune system disorders;
- Mental and psychiatric disorders;
- Musculoskeletal problems;
- Neurological conditions; and
- Respiratory impairments.
Within each of these categories of impairments, there are specific listed conditions to which your condition will be compared.
Contact a New York Social Security Disability Attorney
If you have a question about whether your health impairment can be characterized as a listed impairment, you should contact an experienced attorney. Schedule a consultation to discuss the specifics of your case with an attorney at Hermann Law Group, PLLC by calling 1-877-773-3030.
OUR SOCIAL SECURITY NEW ROCHELLE LAWYER EXPLAINS SUBSTANTIAL GAINFUL ACTIVITY
Our Social Security New Rochelle attorneys can explain substantial gainful activity and how it affects your case in order to help you determine if you qualify for Social Security disability benefits. Under certain conditions, the Social Security Administration might still find that you are “disabled” according to the established guidelines even if you continue to work. Your disability lawyer will review various factors when trying to determine benefit eligibility. He or she will ask the following questions:
- What kind of job do you have?
- How much money do you earn?
- What is your role at the company?
- Do you receive additional subsidies?
- Do you spend anything for impairment-related expenses for your job? If so, how much?
Determining the Type of Work That You Do
If you are involved in “substantial gainful activity” at your place of employment, you will not be considered disabled under the SSA guidelines. In order for you to be disqualified, your work needs to meet both of the following criteria:
- “Substantial” – Your work includes significant mental or physical exertion. The SSA might rule that your work is not substantial if you need additional help and direction to do a basic task or if you do very basic tasks that do not challenge you and that provide little if any benefit to the business.
- “Gainful” – People generally do this type of work in order to earn money. The SSA considers consistent work where an employee receives payment to be “gainful.” If the SSA considers the tasks that you perform at your job to be substantial, you might not qualify for SSD benefits, even if the work is not gainful. For example, you might need to show that you cannot do a sedentary task full time. But if you have a part-time, heavy-duty job, you will not qualify for SSD benefits, even if you income falls below the threshold amount. The SSA will see that you are doing heavy-duty work even for a few hours per week, and they will rule that you can probably hold down full-time sedentary work. Talk to one of our knowledgeable lawyers for additional Social Security disability hearing tips.
What Is Substantial Gainful Activity?
SGA is typically work that brings in a certain amount of money. For 2019, the amount that qualifies is $1,220 per month for people who are not blind, and $2,040 per month for people who are blind. If you make more than that amount per month, the Social Security Administration may not approve your SSD application. In that situation, they presume that you do not have a disability and you “are able to engage in competitive employment.”
It’s important to note that the SSA does not count gifts, interest, investments, and other non-work sources as income. However, the SSA may count volunteer work and even criminal activity as substantial gainful activity if they represent substantial work that a person would normally be paid for. SSA will not consider hobbies and school as SGA.
A high income does not necessarily mean that the SSA will deny you. It depends on the type of work and whether the claimant had special conditions. For example, a claimant may argue that their income would have been lower, except for the fact that they:
- Had special assistance from others at work
- Were allowed to work irregular hours or take frequent breaks
- Had special equipment to help do the work
- Had special circumstances at work
- Were permitted a lower standard of productivity or efficiency
- Worked despite their impairment because of a relationship with the employer
Subsidized Employment and SGA
Some people receive more pay than their work is actually valued. This is called “subsidized employment.” It often happens when a business owner knows the worker well or is a relative of the individual. This may occur in a “sheltered workshop,” owned by friends or family. People receive placements in jobs through vocational rehabilitation may also receive special considerations, including extended rest breaks or reduced productivity standards.
In these situations, the SSA will work to determine the actual value of the work being done by the SSD applicant. If the actual value is under the SGA threshold, then the applicant may still be considered disabled.
Claimants Who Do Not Meet the Minimum Level for “Substantial Gainful Activity”
Our New Rochelle Social Security disability attorneys can help clients determine if they earn less than the minimum threshold amount for the SGA. We take the following steps:
- We calculate your gross earnings.
- Next, we subtract deductions
- We then average your earnings.
- Finally, we compare your wages with the SGA earning guides according to the Social Security regulations, which change annually.
Should I Stop Working?
You should not stop working unless your medical condition becomes so bad that you are unable to work. If you suspect that you have SGA, then you should consult an attorney to evaluate your specific situation. Simply quitting work could lead the SSA to consider your work activity to be an “unsuccessful work attempt.”
If you work for six months or less and are forced to reduce your work time or stop working due to your impairment, then the work you did do will not be considered substantial gainful activity. Your earnings will not be counted against your SSD.
SGA When You Own Your Own Business
The SSA will consider your income from a small business. However, they recognize that a net income of over $1,220 per month for a small business may not reflect your own income. You may not be considered to have SGA even if your business earns over that amount.
The SSA will consider “The Three Tests” when evaluating whether your small business income is SGA:
- Do you provide significant services to the business and receive income that is considered substantial from it?
- Do you perform work comparable to that of someone who is not disabled?
- Is the work you perform valued at $1,180 per month or more?
In evaluating your contribution to the small business, the SSA will also deduct impairment-related work expenses and unincurred business expenses from your net earnings. Unincurred business expenses include contributions made by others to help your small business, especially due to your disabilities. Impairment-related work expenses are costs for medical devices and other items necessary to perform work. The SSA will deduct these expenses from your net earnings and then compare it with the thresholds they have established for SGA.
Substantial Gainful Activity After SSD Claim Approval
You may continue to work after the SSA approves your application. In fact, you can continue to make up to $1,220 per month without threatening your benefits. You must continue to meet SSA’s guidelines for disability.
Continuing benefits rules are different for people who have SSDI vs. SSI.
- SSDI – If you become able to work and make more than $1,220 per month, then the SSA will allow you to make that amount for a certain amount of time before your benefits are cancelled. This is called a trial work period.
- SSI – SSI has many work incentives to encourage people to go back to work. SGA rules do not apply to SSI recipients who have received benefits for a month or more. Instead, SSI has a general income limit that applies.
Contact Our Social Security New Rochelle Attorney
Substantial Gainful Activity and Your Disability Claim
Even if you are still working a little bit, you still may be eligible for Social Security disability or supplemental security income benefits as long as your income stays below a certain amount each month and you can prove that you are unable to perform substantial gainful activity.
The Social Security Administration has set guidelines to help administrative law judges determine whether someone is capable of working on a sustainable basis. A significant factor in this determination is whether you are, or are capable of, earning a certain amount of money every month. If you are doing some work but earning less than this monthly baseline amount, you may still be eligible for benefits because you are not able to perform “substantial gainful activity”. The SSA considers substantial gainful activity to be the ability to engage in competitive employment in the national economy.
The Substantial Gainful Activity Ceiling
The monthly income limits that form the ceiling for substantial gainful activity change on a yearly basis. In 2016, the maximum amount an applicant for disability benefits could earn was $1,130 per month for disabled applicants who are not blind. A blind applicant for disability benefits could earn up to $1,820 per month and still attain eligibility for disability benefits. For 2017, these amounts are $1,170 for people who are not blind and $1,950 for people who are blind. The Social Security Administration provides a running table of these amounts for reference at “www.ssa.gov/oact/cola/sga.html”.
What Income/Work Counts Toward the SGA Determination
The SSA will usually consider wages earned above the monthly limit as substantial gainful activity unless you only were able to perform this work during a relatively short duration of time. If your impairments forced you to stop working or reduce the amount you could work below the income levels considered substantial gainful activity, the Social Security Administration may disregard this work history as an unsuccessful work attempt. We will discuss the rules regarding what kind of job activity is an unsuccessful work attempt in another post.
Even if the work you are presently capable of performing has less responsibility, fewer tasks, or lower pay than your previous jobs, this work may still be substantial gainful activity. The Social Security Administration’s rule tends to favor people with jobs that do not pay well over those who perform skilled labor that commands a higher wage. For example, the SSA may consider someone who is physically or mentally capable of working only a few hours at a time at a job that pays a decent wage as disabled.
The result may be unfair to people with impairments who can perform skilled rather than unskilled work. However, the Social Security Administration makes it a higher priority to provide assistance to people based on the amount of money they earn. This is so so disabled people can receive a certain level of income for meeting their daily needs.
All paid activities can count as substantial gainful activity, even if they are not a normal or regular job. This includes illegal activities such as:
- selling drugs (banned or prescribed)
While these activities will probably not show up in your tax records, the administrative law judge may receive records from prisons or learn about court dates. This kind of information could also show up in reports from others such as a psychologist, social worker, doctor, or parole officer.
Seasonal and Temporary Work
An administrative law judge may consider the circumstances of your work to determine whether your physical or mental impairments are the reason for your low income. People who perform seasonal work, do temporary jobs, or fulfill other forms of as-needed labor may not be considered disabled even if their income is below substantial gainful activity levels. This is because their work activity may indicate they are capable of working more if opportunities were available.
Unpaid Work, In Kind Payments, and Self-Employment
There are many ways that unpaid or low-paying work could still be considered substantial gainful activity. Working in return for non-monetary rewards can count, such as doing a job in exchange for food or a place to sleep. Similarly, if you do not get paid for your work, the wages you should have received might be considered toward the substantial gainful activity ceiling.
If you are self-employed and cannot (or do not) pay yourself a reasonable wage, the administrative law judge may still find you are capable of performing substantial gainful activity. The judge will consider your activity in managing the business against certain baselines for a percentage of work performed or hours worked, or may apply a formula based on an average of the net income you earn less impairment related work expenses. These considerations often get complicated, so make sure you discuss them with your Social Security disability attorney.
Activities That Demonstrate Ability to Work
Even if you are not working at all, an administrative law judge can consider other activities you perform you don’t receive pay for but could demonstrate your ability to work. The judge may consider a number of daily living activities you perform as comparable to working. Examples of these kinds of activities include volunteer work, attending classes at school, organizing or attending regular meetings, and taking care of children or the elderly.
Excluded Income Sources
When reviewing your income history, the Social Security Administration should not include income from sources that are not work. This means the SSA does not consider income sources such as an inheritance, investments, gifts you receive, or interest payments to you in determining the amount of earnings for making a substantial gainful activity determination.
Answering Questions About Your Work
When responding to an administrative law judge’s questions about your work history and earnings, you should try to be as truthful as possible. Administrative law judges regularly receive copies of your employment income from the Internal Revenue Service as part of your disability application file. They have very good information about the income your employer reported as paid wages. So lying to the administrative law judge about your income will only hurt your credibility.
Even so, a long time passes between the date of your application, the appeal process, and the date of your hearing. If you do not know the answer to one of the judge’s questions about your earning history, it is far better to just tell the judge that you do not remember your exact earnings and tell the judge what you can remember about your work at the position.
To Learn More About Substantial Gainful Activity
For help with your Social Security disability claim, call the Hermann Law Group at 914-286-3030. Your initial consultation is free.
Four Ways to Reduce Income Counted Toward Substantial Gainful Activity
A significant factor in determining whether you qualify for benefits is whether you are earning or are capable of earning a minimum amount of money every month, known as performing “substantial gainful activity”. You can reduce income counted toward substantial gainful activity in a number of ways.
Substantial gainful activity is the ability to engage in competitive employment in the national economy. People who earn more than this limited amount for three or more months in a row can expect to have difficulty convincing an administrative law judge that they are unable to perform substantial gainful activity. In 2017, the limit is $1,170 per month for people who are not blind. It is $1,950 per month for people who are blind.
The most common ways to reduce income counted toward this are deductions of sick and vacation pay, subsidies, and impairment-related work expenses. Additionally, Social Security Administration’s policies for averaging your monthly income can have a significant effect on the overall finding.
Even if your earnings exist below the limit listed for substantial gainful activity, you may still want to mention to your attorney any factor below that applies to your situation in case the attorney will need to include it in defending another part of your claim.
#1 Sick Pay and Vacation Pay
If you want to reduce income counted toward substantial gainful activity, sick pay and vacation pay can provide an employee with income when the employee is not working for a time. Many jobs pay at least some wages while the employee is too ill to work. A person may also use vacation time to maintain income when unable to work because of health problems.
When making a substantial gainful activity determination, an administrative law judge should focus on payment for work actually performed during the months in question. You earn sick pay and vacation pay before you become disabled. So your Social Security disability attorney may be able to successfully argue that the SSA should not count this income as part of your monthly earnings when determining whether you are capable of performing substantial gainful activity.
Bonuses, however, are included as earnings when evaluating whether the work performed constitutes substantial gainful activity.
“Subsidies” are the difference between the value of the work or services you provide and the amount of pay you receive. If you receive a premium, that is, more than your work is worth, you may be receiving a subsidy.
Common indicators of a subsidy include:
- Work at a premium rate for a family member or friend.
- Receiving substantial or unusual help from others in performing the work.
- Receiving significant work accommodations that are not offered to other workers.
- Engagement in a government-sponsored job training or other employment program.
If you receive a subsidy, the judge should consider only the part of your pay that an ordinary employee might earn for performing the same work.
#3 Impairment-Related Work Expenses
Expenses for certain items related to your impairments that make it possible for you to work may be deducted from your total earnings. Examples include medical devices and equipment, prosthetic limbs, and some attendant care services. Normal drug costs or medical service costs are not deductible from your monthly income unless you need them to control your disabling condition and allow you to work.
Another major limitation is based on who pays for these types of expenses. The Social Security Administration will not deduct income-related work expenses from your monthly earnings totals if any source reimburses them (such as insurance or a social welfare program). Insurance co-pays you make could be included as a deductible expense. Other limitations may apply as well when you are trying to reduce income counted toward substantial gainful activity.
Due to the complexity of the impairment-related expense rules, you should speak with your Social Security disability attorney regarding the medication and devices you regularly use and the amount you pay out of your own pocket for them.
#4 Income Averaging
The Social Security Administration is supposed to average your total earnings over the time worked unless there is a reason not to do so. The reason they must average your earnings is to make sure that no short period of improvement or abnormally high payment makes too significant of a change to the overall trend of your work history. Similarly, periods of time when you are completely unable to work should be factored into the evaluation.
There are circumstances where the administration should not average your monthly earnings. Distinct periods of work and unemployment, significant changes in the work involved due to your impairments, or an annual change in the substantial gainful activity levels from one year to the next are all factors that could justify not averaging your monthly work income across a longer period of time.
Learn More About How to Reduce Income Counted Toward Substantial Gainful Activity
Work with your Social Security disability attorney to help him or her understand your work history before you stopped working or significantly reduced you hours. Even if your earnings are a little above the monthly substantial gainful activity limits, your Social Security disability attorney may be able to reduce the income counted toward substantial gainful activity and defend the longest reasonable period of disability.
If you are thinking of applying for Social Security disability benefits or your initial application has been denied, call the Hermann Law Group at 914-286-3030 for a no cost, no obligation evaluation of your case.
Can You Work and Get Social Security Disability Benefits?
Claimants who work part-time often wonder whether they can work and get Social Security disability benefits. In short, you can qualify for disability benefits even if you can perform some work. However, the amount of work you do and the wages you earn from it must be limited.
One of the key elements of qualifying for SSDI/SSI benefits is the inability to perform “substantial gainful activity” (SGA). Disability is defined as the inability to perform SGA. No matter how injured you are or how bad your illness is, you will not qualify for disability if you can perform SGA.
What Is Substantial Gainful Activity in Social Security Disability Benefits?
Substantial gainful activity is work that pays more than a monthly limit. The amount changes every year. The limit can be found on the SSA website, www.ssa.gov.
For 2016, you cannot make more than $1,130 per month, or $13,560 per year, to be considered disabled. That amounts to working about 35 hours per week at the federal minimum wage of $7.25. If you make more than the federal minimum wage, fewer hours would be necessary.
To determine how much money you make per month, multiply your rate of pay by the hours of work you complete in an average week, then multiply that number by 52 (the number of weeks in a year). You will then have your average annual income. Then, divide your average annual income by 12 (the number of months in a year). This will give you an average monthly income. Simply multiplying your weekly wage by four will not produce your average monthly income because the number of weeks in a month varies.
If you make the federal minimum wage ($7.25/hr) and work 30 hours per week.
- $7.25 x 30 hours = $217.50 weekly
- $217.50 x 52 weeks in a year = $11,310 annually
- $11,310 ÷ 12 months in a year = $942.50
- Your average monthly income is $942.50.
The total amount of money you are allowed to make may be slightly different depending upon your specific circumstances. For example, if you are blind, you may earn up to $1,820 per month and still be considered disabled.
How Social Security Determines if You Can Do Substantial Gainful Activity
Working before you are approved for benefits, even though you are earning below the SGA limit, can sometimes make your claim more challenging. When you are doing some work, the SSA evaluator will look closely at your evidence to determine why you are unable to increase your work to the SGA level. You will be required to provide proof of income and other details about your job.
If your income does not meet the level of substantial gainful activity, but your impairments do not prevent you from working more, you may still be found able to work. For example, if your job simply didn’t give you enough hours, and you also performed volunteer work several hours per week, the SSA evaluator may conclude that you are able to perform substantial gainful activity. The SSA will even consider hobbies and criminal activities as proof of a claimant’s ability to work.
Conversely, if you earned more than the maximum amount allowed, but incurred impairment related work expenses (IRWE), they may reduce your income below the SGA level so that you can qualify for benefits. IRWE are the cost of items such as medications, medical treatment and equipment, and certain other expenses that you need to work because of your disabling medical condition.
If you are filing for SSI disability payments, IRWE may reduce your income in order to meet the SSI federal income test.
Working after You Begin to Get Social Security Disability Benefits
Once you are approved for SSDI benefits, you’ll continue to get your full disability benefit while you work as long as your earnings stay below the SGA limit. You can also earn above the SGA limit and still receive your full benefits during a nine-month trial work period
SSA wants you to return to full time work when possible. Thus, you are allowed a trial work period during which your SSDI benefits will not be reduced for up to nine months regardless of how much you earn. However, it is possible for the amount of your SSI benefits to be reduced if you have other income. During your trial work period, your health benefits will also continue.
You must report when you start and stop work, as well as your rate of pay and any expenses you have because of your disability. If your disability benefits are discontinued because of your earnings, and then you become unable to work again because of the same medical condition, your benefits will be reinstated.
While the standard rules for working while disabled seem beneficial, they can be complicated. SSA does want to help people return to work; however, they diligently review cases to stop benefits of recipients who they believe have recovered enough to return to full-time work. You need a qualified disability attorney to help you work and get Social Security disability benefits. Contact the Hermann Law Group at 914-286-3030 to learn how our disability attorneys can assist you.
Beware of Work Issues That Could Jeopardize Your Disability Claim
You need to be careful that you do not jeopardize your Social Security disability claim when you are applying for benefits. If you fill out a job application for a job that you cannot do, your claim might be turned down. Talk to our New York disability attorneys for further tips.
Unsuccessful Work Attempts and Your Social Security Disability Claim
Whether you have applied for or are currently receiving Social Security disability benefits or supplemental security income, you may consider trying to work again, either on a full or part-time basis. The Social Security Administration encourages people to try and return to work by having policies in place that should not punish you for trying. Based on the amount of money you earn and the amount of time you can keep a job, your attempt to return to work may not hurt your Social Security disability claim or application for supplemental security income benefits.
When Is an Unsuccessful Work Attempt?
According to the Social Security Administration, an unsuccessful work attempt occurs if you are forced to either stop or reduce the amount of work that you are performing within a specified amount of time and results in receiving wages below a specified amount of monthly income. If these conditions occur, the Social Security Administration does not consider you capable of working on a sustainable basis, referred to as the ability to perform “substantial gainful activity”.
According to the Social Security Administration, you can generally work at a single position for up to three months before it would be considered an unsuccessful work attempt. Working between three and six months at a single position will cause the administrative law judge to review and evaluate other factors to determine whether this work constitutes an unsuccessful work attempt in your Social Security disability claim.
These criteria include:
- how often you were absent from your job due to your physical or mental impairments,
- the quality of the work you performed on the job,
- whether your mental or physical impairments had temporarily improved during the time you were working,
- whether your physical or mental condition changed significantly while you were working, and
- any other special allowances that your employer may have offered to help you out.
If you are able to continuously work at a single job for six months or more at a time, the Social Security Administration will usually not consider your work to be an unsuccessful work attempt, regardless of the surrounding circumstances.
How Do Breaks Between Jobs Affect Your Social Security Disability Claim?
Any break between jobs must be both significant and related to your mental or physical impairments. For a “significant” break between jobs, you would need to be out of work for at least thirty days, be forced to change to another type of work due to your impairments, or be forced to work for another employer because of your impairments.
Losing your job because your company went out of business or closed the store where you worked would not count because that would not be an injury-related reason that you lost your job. Simply quitting a job once your employment starts to reach one of these deadlines may not help your Social Security disability attorney establish the job to be an unsuccessful work attempt.
An administrative law judge is expected to look into the circumstances of your work, including the reason why you are no longer working. To be considered an unsuccessful work attempt, you job should end because either you cannot keep working due to your physical or mental impairments, or because you are no longer granted a particular type of special condition at work that was related to your impairment.
Proving That You Left Your Job Due to Health Reasons
When stating you left a job due to its effects on your physical or mental health, the amount or type of proof you might need to support your claim will usually depend on the judge. Some administrative law judges may simply take your word for it when you say had to stop working due to your physical or mental impairments. Others may want additional proof.
As usual, your medical records and opinion statements by medical treatment providers tend to provide the most convincing proof regarding the extent of your disabilities. An administrative law judge may take additional care to review your medical records during the period that you were working to see if there were any significant changes in your physical or mental health while you had a job.
If you did not leave your employment on bad terms, you may want to request that your former employer write a letter for your file describing why you had to leave the position due to your physical or mental limitations. While not as important as medical opinions, such a letter could help support your own testimony and credibility in your Social Security disability claim. Do not be surprised if your former employer refuses to write such a letter, however. Some employers may be concerned about how such a letter could affect their own rights or affect their business from a labor or employment law perspective.
What Is an Impairment-Related Special Condition?
There are a number of accommodations that an employer may provide that the Social Security Administration could consider to be an “impairment-related special condition”. An impairment-related special condition provided by your employer could include allowing you to perform your job duties at a lower level of quality or at a slower rate than other employees.
Your employer may give you different assignments than other employees, may allow you the ability to take more breaks than other employees, work different hours than other employees, or getting more help from employees to do your duties. Your employer may also provide you with special equipment to do the job that other employees do not receive.
If you can show that your employer let you work for them based on some other kind of relationship, such as doing a favor for family member or friend, even that could be enough. Generally speaking, any special assistance or accommodation that your employer provided to you individually could be very important to establishing your temporary work as an unsuccessful work attempt as long as the accommodation relates to your physical or mental impairments.
Discuss Your Social Security Disability Claim With Your Attorney
If you worked at all during the period of time when you are requesting Social Security disability or supplemental security income, you should make sure to discuss your work with your Social Security disability attorney.
When possible, you should let your attorney know the dates you worked, your job duties, how you were hired for the position, and why you stopped working. You should be prepared to answer questions about the work you did, any special treatment you received from the company or your boss, your relationships with your boss and co-workers, and any contact you had with customers or others outside the office.
By going through this information with your attorney, you will help them be able to convince the administrative law judge that the short period of time that you were working should not prevent you from receiving disability benefits.
Contact Us Today
For questions about your Social Security disability claim, contact Hermann Law Group, PLLC today.
Doctor’s Opinion on Work
Doctor’s Opinion: a New York Social Security Disability Attorney Explains How It Can Help or Harm
Doctors often have reservations about how their opinions might affect their patients’ Social Security disability claims. A New York Social Security disability attorney responds to some of these in the paragraphs below.
Whether or Not to Indicate Patient’s Ability to Work
Although the Social Security Administration allows patients to be capable of some types of labor, it is wise for a physician to consult a New York Social Security disability lawyer for clarification if he or she is uncertain as to what recommendations to make. The indication that the patient can perform some fairly undemanding work is not necessarily damaging. The patient need not be a complete invalid to be considered disabled.
Most Crucial Error to Avoid on Disability Forms
Be careful not to overstate the patient’s limitations. If you make the patient seem more disabled than his condition warrants, you damage not only your patient’s case but the value of your own opinion as well.
Completing Forms If Patient Can Work
If you, as the physician, believe that your patient is capable of full-time work, you may have questions as to the necessity of submitting the forms at all. Doctors are sometimes reluctant to impose the additional charges on their patients that would be incurred due to the extra time and work involved. This is a valid question, and the answer is dependent upon how old the claimant is and the theoretical stance held by the attendant New York Social Security disability lawyer. Patients older than 55 may be declared disabled whether they can work or not, especially if the attorney is considering both mental and physical impairments. A telephone call to the attorney can help to resolve the matter.
If You Have Questions
Find the information and assistance you need for your patient’s Social Security disability claim. Contact a New York Social Security disability attorney with Hermann Law Group, PLLC, by calling 1-877-773-3030 today.
The Trial Work Period
The Trial Work Period
Hermann Law Group explains the trial work period. Watch the full video to get the in-depth information.
Do you need assistance with your Social Security benefits case? Contact our attorney at Hermann Law Group.
Occupational Disability Benefits vs. Total Disability Benefits
There are two types of disability annuities available through the Railroad Retirement Board: Occupational Disability, and Total and Permanent Disability. Below is a brief summary outlining the differences between the two annuity types
Occupational Disability Annuity
- You are unable to work in your regular Railroad job
- You might be able to do other work
- Have a current connection with the Railroad, AND
- Either have 240 months of creditable Railroad service, OR be at least age 60 and have 120 months of creditable Railroad service, AND
- Be “permanently disabled” for work in your “regular railroad occupation”
Total and Permanent Disability Annuity
- You are unable to work in any kind of regular job
- Stop all work, AND No current connection with Railroad necessary
- Have 120 months of creditable Railroad service, AND
- Be “permanently disabled” for any kind of “regular work”
You should consult with your attorney in order to determine which annuity you are eligible for, and exactly what you must do in order to qualify for it.
Pain and Your Residual Functional Capacity
Are you applying for Social Security in New Rochelle or surrounding areas? Or has your claim already been denied? The Hermann Law Group would like to help you get your disability benefits.
Too often deserving claimants are turned down because New York Disability Determination Services (DDS), the state agency that makes disability determinations for the Social Security Administration, incorrectly assesses their ability to work (or residual functional capacity) or discounts legitimate complaints of pain.
What is Residual Functional Capacity?
SSA defines residual functional capacity (RFC) as “the most you can still do despite your [physical and mental] limitations” caused by your impairments and related symptoms, such as pain. The SSA recognizes that your limitations can affect what you can do in a work setting to the point where you cannot productively function.
What Does the DDS Look at to Assess Residual Functional Capacity?
DDS will take into consideration all of your impairments, including those that are not “severe” if taken individually. The DDS claims examiner and/or medical consultant, who reviews your medical eligibility for benefits, will review your medical evidence (medical records, your doctor’s report, the independent medical expert’s opinion) and other evidence (e.g. witness statements, your employment records).
Unfortunately, claims examiners sometimes fail or are unable to obtain complete medical records. Other times, they fail to consider a claimant’s other, less severe or debilitating impairments when determining disability. An experienced social security disability attorney will be sure to include all your impairments and symptoms in your application for disability benefits since the cumulative symptoms caused by all of your impairments could prevent you from working.
How Does the SSA Assess Residual Functional Capacity?
The DDS claims examiner will consider your ability to meet the physical, mental, sensory and other requirements of work to determine whether you can perform your past work or other suitable work considering your age, education, and experience.
The DDS claims examiner will first assess the nature and extent of your physical limitations, such as:
- How long you can sit or stand in conjunction with your need to shift positions.
- How far you can walk without taking a break.
- How much weight you can carry, lift, push or pull.
- How high you can reach.
- How low you can stoop or crouch.
Restrictions in any or all of these areas can reduce your ability to perform your duties.
The claims examiner will then assess the nature and extent of your mental limitations, such as:
- Ability to understand.
- Ability to remember.
- Ability to carry out instructions.
- Ability to respond appropriately to your supervisor, co-workers, clients, etc.
- Ability to respond appropriately to work pressures in a work setting.
Restrictions in any or all of these areas can reduce your ability to work on a continuing and regular basis.
How Does Pain Affect My RFC Evaluation?
Unfortunately, since pain is subjective and difficult to prove, the claims examiner may not put much credence on your claims of pain. Thus, if you claim you have lower back pain that prevents you from sitting, standing or walking for a long time; bending; or lifting; but you are not on pain medication or you received minimal treatment for lower back pain, most likely the claims examiner will believe you are exaggerating your pain. Adding another layer of complexity, your treating physician may poorly reference your pain level in his or her treatment notes or inadequately infer the effects your pain may have on your ability to engage in normal activity.
Medical examiners who work with the SSA will review your medical records but will not conduct their own physical examination of you. The medical examiner will base his or her decision on your medical records even if they are inadequate or incomplete.
Federal courts have frequently held that the SSA must evaluate the intensity, persistence, and limiting effects of your pain on your ability to perform basic work activities. The following are factors that the claims examiner should consider:
- Location, duration, frequency and intensity of your pain.
- How your pain affects your daily activities.
- What factors precipitate and aggravate your pain.
- The type, dosage, effectiveness, and side effects of medication you take to alleviate your pain.
- Other treatments you undergo to relieve your pain, such as acupuncture, chiropractic, physical therapy or other alternative treatments.
- Other ways you relieve your pain, such as lying down, applying ice, propping up your limbs, etc.
If you have multiple impairments, but no single impairment taken alone could be considered disabling, the SSA must consider the totality of your impairments. For example, if you have chronic headaches that give you moderate pain, were diagnosed with osteoarthritis that also gives you moderate joint pain, and you suffer from moderate to severe depression, the SSA will consider all of your symptoms and how your symptoms affect you. Your chronic headache and/or frequent joint pains may increase your depressive state making it more difficult for you to concentrate on your tasks. The SSA will take the limiting effects caused by your all symptoms and impairments into account when assessing your RFC and then determine whether you can perform your past work or other work.
What Can I Do To Prove My Pain?
Our Social Security disability lawyers suggest doing the following to show the claims examiner that you are not exaggerating your pain.
- Seek medical treatment – what you are actively doing to alleviate your pain shows how much the pain bothers you. If you are not actively seeking or receiving treatment, it infers that you are able to cope with your pain and it is not severe.
- Report to your treating physician – report your pain level to your doctor and any limitations or activities that exacerbate your symptoms.
- Keep a diary – record the timing, frequency, duration, and intensity of your pain, even if the pain level was moderate or less. Indicate how you alleviated your pain. You may also note what you were doing when the pain occurred or whether the pain was subtly increasing in intensity. Note whether you needed to take medication, leave work, stop what you were doing, or had to seek medical attention.
- Follow your doctor’s orders – if your doctor indicates that you cannot lift a certain weight, don’t lift more than that weight. If your doctor limits your activity, follow his or her orders.
If you cannot work because of your medical condition, get help from our Social Security disability lawyers. We will:
- Review your medical and employment records and obtain any missing records for SSA review.
- Work with your doctor to obtain a report detailing your medical history, treatment, tests results, findings, diagnosis, prognosis, and functional limitations.
- Obtain statements from co-workers, employers, friends, and family as appropriate regarding your pain and other symptoms caused by your condition and how they affect your daily and work life.
- Assist in preparing your initial application or your appeal.
- Represent you at your Social Security disability hearing, if your case requires a hearing.
If you would like to speak with a disability attorney at the Hermann Law Group about your claim for Social Security in New Rochelle or elsewhere in the New York metropolitan area, call 877-773-3030.
Mental Residual Functional Capacity
In this blog, a New York Social Security disability lawyer lists some of the issues you may be questioned about concerning your Mental Residual Functional Capacity (RFC).
Preparing for Your Testimony
As you and your New York Social Security disability law firm prepare for your hearing, you may expect questions concerning how well you:
• Grasp the meaning of directions and perform tasks accordingly:
o Recall and implement undemanding tasks correctly.
o Remain on task for at least two hours between scheduled breaks.
o Arrive at work in a timely fashion and operate according to a standard timetable without help.
o Avoid absenteeism and tardiness.
o Work without requiring more rest periods than are normally permitted.
o Avoid being diverted from your work by other people.
o Finish tasks without unnecessary delays or loss of time.
o Work throughout the day without your mental condition becoming an issue.
o Keep procedures and work areas in mind.
• Employ appropriate thinking skills:
o Exercise soundness in judgment.
o Keep safety procedures in mind and act accordingly.
• Relate to and cooperate with superiors, subordinates and others:
o Request information or guidance as needed.
o Receive guidance and criticism properly.
o Maintain proper professional conduct when dealing with other people.
Your New York Social Security Disability Law Firm Attorney Can Help
Don’t hesitate to call on your New York Social Security disability lawyer to assist you in your disability case. Contact Hermann Law Group, PLLC at 1-877-773-3030 today.
Our Social Security Lawyers New Rochelle Discuss Medical Evidence
If you need help with Social Security lawyers New Rochelle, look no further than hiring an attorney. An attorney can help you figure out how to apply for disability in NY, how to represent yourself at your hearing and how to use medical evidence to earn benefits. Medical evidence and your treatment history can help lend credibility of your statements about pain and other symptoms.
Social Security Lawyers New Rochelle & Medical Evidence
The effects of symptoms can often be observed even when the symptoms themselves are unable to be measured. As an example, reduced joint motion and muscle spasms can be a result of pain, as well as movement disruption and sensory deficits. These findings in your medical records may help lend credibility to your statements about the pain you deal with on a regular basis. Important information about your symptoms may include the symptoms’ onset, description of the location and character of your symptoms, and aggravating actors. Frequency and duration should also be examined as well as whether your symptoms have worsened, improved or stayed the same over time. Their effect on your daily activities is also important. In most cases, your doctor will have obtained this information directly from you. A record over time of treatment and its success or failure will also be examined by the adjudicator as well as indications of other impairments that could account for your symptoms.
Your Treatment History
Persistent attempts to obtain pain relief or relief from other symptoms is just as important as the symptoms themselves. The judge will want to know if you tried increasing medications or tried different medications. He or she may also want to know if you tried changing treating doctors, which may be a sign that you were distressed by your symptoms. If he or she believes you have not tried hard enough to alleviate your symptoms, you may be denied for benefits.
Contact a Lawyer for Social Security New Rochelle Residents Can Rely On
For more information on how to apply for disability in NY, contact Hermann Law Group, PLLC at (914) 286-3030.
Our Social Security New Rochelle NY Lawyer Discusses Medical Evidence
If you are struggling to get benefits from the Social Security New Rochelle NY system, our disability lawyer may be able to help you. Medical evidence is the primary factor the Social Security Administration looks at when determining your eligibility for benefits. Your medical records are necessary to support your claims of pain and other distressing symptoms. Your medical record must include records of your symptoms made by your treating medical professionals.
Below, we discuss what to expect when you get a Social Security disability medical records request. To learn more about what type of medical evidence the SSA will consider, contact a NY disability lawyer at Hermann Law Group, PLLC today.
Social Security Disability Medical Records Request
Your medical records must include the date of onset as well as the location of your symptoms and the nature of their occurrence. Include any aggravating factors as well as the duration and frequency of your symptoms. It is necessary to give the judge a thorough understanding how how your symptoms present and how they affect your everyday activities.
Your adjudicator may compare the information in your medical record to the information in the rest of your file. Over time, a record of treatment should show either success or failure. If you have demonstrated attempts to seek effective care over time, your claims of distress will appear more genuine to the judge. This means changing physicians and treatment plans if there was no sign of effectiveness. Persistent attempts to find new medical solutions, whether by getting a referral to specialists or adopting a new type of therapy, demonstrates a history of distressing symptoms and a willingness to find a solution that works.
Your statements may not be seen as credible if the frequency of your treatment is not consistent with the amount of pain or discomfort you claim in your file. In this case, the judge may determine that you did not sufficiently seek an effective source of treatment and are not eligible for benefits. Our Social Security Hudson NY attorneys may be able to help you determine your eligibility.
Types of Medical Evidence the SSA Will Review
There are several types of medical evidence that a Social Security disability medical records request might entail, including:
There is a special weight put on currently treating doctors by the SSA. Your currently treating providers tend to know more about your medical history and give more detail about your conditions. Treating providers may be more persuasive than doctors that you see only one time.
Your treating providers can complete medical assessment forms from the SSA. This medical evidence will be important as the SSA makes a determination about your disability. Your doctors can also write a letter to accompany your records. The letter should discuss your abilities and conditions. If your doctor does not want to cooperate with you as you move through the disability process, you should talk to a Social Security Disability attorney.
You may have been treated at a hospital on an emergency basis or for specialized tests and procedures. These records are also a type of medical evidence that will be reviewed by the SSA. You should provide the following information to the SSA so they can gather all hospital records on your behalf:
- Name and contact information for each hospital
- Dates of service
- Names of treating physicians
- Type of tests or procedures completed
- Medical record number
Many medical conditions are diagnosed based on laboratory tests and other types of medical tests. When you submit a disability claim for many conditions, the SSA will specifically look for certain types of tests. For example, if you have coronary heart disease, the SSA will look for a stress test, an angiogram or other imaging, and ECG results. You should make sure you list all tests you’ve had completed by your medical providers.
Medical Evidence From Consultative Exams
The Social Security Administration may ask you to attend an exam with a consultant. This routine request can give the SSA a different perspective. The examiner will review all of your medical records and also examine you in person.
Typically the SSA will select the doctor to perform a consultative exam; however, you can request that your regular doctor perform the exam. If your treating physician is unqualified to perform the exam or doesn’t have the needed equipment, then SSA may select someone else.
You can use the consultative exam as medical evidence in your Social Security disability medical records request. Any information they find in the consultative exam can be transferred to other medical providers and given to the SSA as evidence. Oftentimes, the consultative exam will weigh heavily on the disability claim.
Types of Medical Records the SSA Will Accept
The SSA will review all of the records that you send; however, only certain doctors are qualified to assess your disability according to the SSA. It is possible that some of your medical records would be discarded and not considered if your medical provider was not qualified.
Acceptable medical records may come from the following:
- Physicians who are licensed
- Psychologists who are licensed
- Optometrists who are licensed
- Certified or licensed speech therapists
- Podiatrists who are licensed
- Records from accredited hospitals, clinics, and health facilities
Unacceptable medical records may come from the following:
- Massage therapists
- Yoga instructors
- New age medicine providers
Age of Medical Records
You should submit all relevant medical records to the SSA, regardless of age. However, the SSA will use all records to assess your current conditions. Thus, if records are not relevant, they may confuse the SSA examiners or add unnecessary information that complicates your diagnosis.
If you have a disability that quickly progresses, your older medical records may not present an accurate picture of your current condition. You should provide up-to-date records that discuss your conditions as they current affect you.
Older records may also support your claim if they show a slow progression over time. You may be able to show the beginning of your condition through the point of disability. If your condition has remained unchanged for a long period of time, that may also support your claims that you are unable to work. Older medical records can give the SSA a broad view of all of your conditions.
Providing Sufficient Medical Records
Your main concern with a Social Security disability medical records request should be providing a complete picture of your conditions to the SSA. That will include sufficient medical records over a period of time and from all of your treating providers. A simple diagnosis is not enough. Your medical records should also show tests, treatment, and results of exams. You may ask your doctor to include a prognosis in your records as well as treatment goals. They should indicate whether or not you are following your treatment guidelines and taking recommended prescriptions. If your doctor is not keeping detailed records, then you may ask a disability attorney to suggest a new treating physician for you.
Contact a Social Security New Rochelle NY Lawyer
Keeping Medical Records and Following Treatment Is Essential to Receiving Disability Benefits
In order to ensure that you receive your disability benefits for many years to come, you should retain copies of all of your medical records and following through with all recommended medical treatment protocols.
We are fortunate to have a government which provides assistance to disabled Americans who can no longer work as a result of a serious disability. Social Security disability benefits are overseen by the Social Security Administration, and the federal government’s disability program provides the following benefits for qualifying individuals:
- Monthly stipends for the disabled person
- Monthly stipends for qualifying family members of the disabled person
- Medical coverage under Medicare
Applying for and obtaining Social Security disability benefits can be a long and tedious process, which can take anywhere from 1-to-2 years. If you are in the process of filing a claim for disability, the lawyers at Insler & Hermann, LLP can help you obtain the benefits that you need.
Proving Permanent Disability
One of the most difficult parts of making a claim for disability benefits is proving that you are permanently disabled. It is only upon a finding of permanent disability that the government will award you disability benefits. The problem is that in many cases, people become so frustrated with their current medical condition or lack of improvement that they simply give up and stop treating with a health care provider. However, that can create problems later on.
In order to prove that you have sustained a permanent disability, you will need complete medical records which document your condition and medical treatment. Once you stop treating for a condition, however, no more medical records are produced. A lack of treatment records can make it extremely difficult for you to prove permanent disability to the Social Security Administration.
In order to award you disability benefits, the Social Security Administration must be convinced that you are continuing treatment, that you are following through with all medical treatment, and that you are at least trying to recover from your injury or condition.
In order to receive disability benefits, it is also important for you to follow through with all of your health care provider’s treatment recommendations. This usually means doing the following:
- Seeking treatment from a specialist, if recommended
- Attending all medical and physical therapy appointments
- Arriving to all medical appointments on time and staying for the entire appointment
Some acceptable reasons for not following through with recommended medical treatment include the following:
- Severe mental illness
- Lack of money to pay for treatment
- Doctor prescribing a course of treatment with which other doctors do not agree
Mental impairment, such as depression resulting from physical injury, may also be classified as a disability for purposes of disability benefits. However, as with physical conditions and limitations, there must be a medical record which establishes a firm diagnosis for the mental condition and which outlines a treatment or care regimen for the condition.
Because oftentimes a social stigma comes with mental conditions and mental illnesses, people oftentimes forgo medical treatment for these conditions. However, seeking medical treatment and following through with all prescribed medical treatment is of the utmost importance when it comes to receiving compensation through social security disability.
Contact a New York Disability Benefits Lawyer Today to Discuss Your Case
If you need help with your Social Security disability benefits, you need experienced legal representation on your side every step of the way. A lawyer will be able to evaluate your claim and can help you obtain the compensation that you need. Contact Insler & Hermann, LLP by calling (914) 286-3030 today.
A Disability Attorney in New York on Medical Treatment and Medical Records
When a person files a disability claim with the Social Security Administration, the claimant is asking the SSA to reach a finding that the he or she has a physical or mental impairment that precludes performing substantial gainful activity by working in a previous or other job. An important component of that determination is the examination of the medical record of the claimant that, in the SSA’s assessment, supports a finding of impairment.
Seek Treatment for All Physical and Mental Conditions
Most people have a primary impairment form which they suffer, but many have multiple afflictions. SSA’s rules and regulations require it to look at the totality of a claimant’s medical condition, and it is not unusual for a person to be found disabled based on a combination of different impairments. Additionally, a disability attorney in New York cautions that many who struggle with the inability to work and long-term physical issues often develop anxiety, depression or other mental conditions that require treatment. If you are filing a disability claim, be certain the SSA has a complete list of all medical professionals you have sought treatment from.
Be Diligent in Keeping Appointments and Following Recommendations
A claimant who misses doctor visits or ignores supplemental treatment advice such as therapy or chiropractic care may be viewed by the SSA as not interested in regaining his or her health and consequently denied benefits. Similarly, you may experience a plateau, or period of showing little or no improvement, after receiving treatment for a period of time. Don’t get discouraged and curtail treatment; stay the course and demonstrate to the SSA that you have done all that is possible to recover.
Contact a Disability Attorney in New York for Legal Advice About Your Disability Evaluation Under Social Security
In addition to your complete medical record, the SSA can ask you to visit a doctor of its choosing to assist in the determination of your disability. It is important to comply with this request; failing to do so can be grounds for a denial. For any questions on your disability claim, call Hermann Law Group, PLLC, a disability attorney in New York, at (914) 286-3030.
How Doctors and Disability Attorneys in New York Present Medical Evidence
If you’re working with a Social Security disability lawyer in NYC, you may already know that a doctor’s opinion is an essential part of your application or appeal. Unfortunately, medical records don’t give decision-makers an accurate picture of your work capacity, especially if your condition is not included in the official Listing of Impairments. In 66 Fed. Reg. 58,017 (2001), the Social Security Administration even admits that empirical medical evidence, such as X-rays, cannot measure a patient’s disability.
How Doctors Assess a Patient’s Condition and Work Capacity
Usually, your doctor will assess your disability by discussing your medical condition with you. A doctor’s opinion should include a combination of professional judgment and the patient’s input. This approach allows medical professionals to develop an opinion based on medical science and how specific impairments affect different individuals.
Professional Judgment and Patient Input
Professionally, doctors cannot simply corroborate everything that you say. Doctors must determine which symptoms are directly related to your disability. For example, your doctor might find that certain complaints cannot be attributed to a specific cause with absolute certainty. Your doctor may also downplay complaints that contradict your medical history. To be accepted, medical opinions must be realistic and consistent with known evidence and research. For example, if you have joint dysfunction, your doctor might include research showing that lumbar range of motion has no correlation with disability.
Contact Disability Attorneys in New York
If you’re preparing an SSD application, a Social Security disability lawyer in NYC can provide advice and guide you through the process. To learn more about objective medical findings, call 914-286-3030 to discuss your case with Hermann Law Group‘s experienced disability attorneys in New York. We can help you navigate your case and get the benefits you deserve. Call us today.
Evidence Needed to Win a Case
Evidence Needed to Win a Case
Here is a video provided by the Hermann Law Group as to the Evidence Necessary to Win a Case. Watch the video for more details. Contact the Hermann Law Group today for a free initial consultation.
Presenting Convincing Medical Evidence
Presenting Convincing Medical Evidence
The video explains how do you know if you’re presenting convincing medical evidence for your disability case? Consult the professionals at Hermann Law Group today.
Disability Attorneys in New York Know the Importance of Keeping a Symptom Journal
You must describe your pain and other symptoms to the judge at your Social Security disability hearing. To ensure that you don’t omit any important details in your testimony, you should write down your medical symptoms inside a journal. Most disability attorneys in New York will tell you that a written journal can be useful as a reference tool during the lengthy waiting period before the hearing.
How Your Doctor’s Opinion Can Help You in a Social Security Disability Benefits Claim – Oblinger v. Commissioner Social Security
In Oblinger v. Commissioner Social Security, the District Court for the Southern District of Ohio once again explains the importance of treating physician opinions in a Social Security Disability case.
The Social Security Administration (SSA) denied Plaintiff Dean Oblinger’s Disability benefits claim, in which he asserted that he was unable to work due to back pain resulting from a broken back and spinal fusion procedure. A 46-year-old who had previously worked in sanitation, as a retail stock supervisor and as a “security gate guard,” Plaintiff later appeared at an administrative hearing before an SSA Administrative Law Judge (ALJ). Although Plaintiff testified at the hearing that he experiences severe pain radiating through his legs on a daily basis and can stand or sit for only limited amounts of time before his legs go numb, the ALJ found that Plaintiff was not disabled for benefits purposes.
Specifically, the ALJ determined that Plaintiff retained the residual functional capacity (RFC) to perform a limited range of light work, with the ability to sit, stand or walk for up to six hours a day so long as he could change positions at will. With this RFC, the ALJ ruled that Plaintiff could return to previous work as a gate guard. The RFC determination was based on the expert opinion of Dr. Gaitens and the results of a functional capacity assessment performed by Dr. Cho, a state agency reviewer, while the decision regarding the type of jobs Plaintiff could perform was based on the testimony of a vocational expert.
On appeal, the District Court found that the ALJ failed to give appropriate weight to the opinion of Dr. Fitz, who treated Plaintiff from 2004 to 2009 and stated that he was disabled. As the Court explained, “[i]f not contradicted by any substantial evidence, a treating physician’s medical opinions and diagnoses are afforded complete deference.” In the event that an ALJ decides to afford less weight to a treating physician’s opinion, the judge must explain the specific amount of weight given to the opinion and the reasons for it.
Here, the Court found that the reasons provided by the ALJ for giving Dr. Fitz’s opinion “little weight” were not sufficient. Despite finding that Dr. Fitz’s opinion was inconsistent with his clinical findings and not supported by diagnostic tests, the ALJ did not identify the inconsistent findings nor explain the tests, according to the Court.