SSR 96-8p: Assessing Residual Functional Capacity in Initial Claims

• Author: David Traver
• Pages: 323-367

11-1

Chapter Eleven

SSR 96-8p

Assessing Residual Functional Capacity

in Initial Claims

§1100 Introduction

§1101 SSR 96-8p — Six Major Points

§1102 Point One — RFC “Ordinarily” Defined in Terms of a 40-Hour Workweek

§1102.1 History of RFC and Vagueness

§1102.2 RFC — Clarification of Full-Time Work by 96-8p

§1102.2.1 Practice Tip

§1102.3 RFC — “Regular and Continuing Basis” and Circuit Case Law

§1102.3.1 Practice Tip — Sample Brief — Less Than Full-Time Work, Sit/Stand at Will

§1102.4 RFC — Vocational Experts, Labor Market Surveys and Part-Time or Temporary Jobs

§1102.5 The Adjudicator’s Duty to Develop the Record Before Assessing RFC

§1102.6 The Adjudicator’s Duty to Consider Combined Impairments in Assessing RFC

§1102.6.1 Case on Point

§1102.7 The RFC Assessment Must Be Based on the Entire Record

§1102.8 Duty to Consider Findings of the Psychiatric Review Technique as an Element in the Finding of Re-

sidual Functional Capacity

§1102.9 The ALJ’s Duty to Apply the Psychiatric Technique to the Assessment of

Mental Impairments

§1102.10 Practice Tip: Mental RFC Form SSA-4734-F4-SUP

§1103 Point Two — RFC Excludes Consideration of Age and Body Habitus

§1103.1 Obesity

§1104 Point Three — The Adjudicator’s Duty to Develop the Record, as Triggered by Specific

Allegations and Evidence

§1104.1 Case on Point: Developing the Record

§1104.2 Using SSR 96-8p With 96-7p

§1104.2.1 Combining SSRs 96-8p and 96-7p (Credibility) — Illustrative Cases

Social Security Disability Advocate’s Handbook 11-322

§1105 Point Four — The RFC Assessment Must First Access Work-Related Abilities on a

Function-by-Function Basis

§1105.1 Case on Point

§1105.2 SCO Analysis

§1105.3 Mental Abilities Needed for Any Job

§1105.4 The Definition of “Substantial Loss” Is Intentionally Vague

§1105.5 Mental Abilities Needed to Perform Semi-Skilled and Skilled Work

§1105.6 Stress and Demands of Work

§1105.6.1 Cases on Point

§1105.7 Using the Function-by-Function Assessment

§1106 Point Five — The Least a Person Can Do Is Not a Proper RFC

§1107 Point Six — The Nature of the Functional Limitations Caused by Medical Impairments and Related

Symptoms Determines Their Classifications as Exertional or Nonexertional

§1108 Other Points — Narrative Discussion

§1108.1 “Material Inconsistencies”

11-323 SSR 96-8p §1102

§1100 Introduction

This is a critical Ruling. Not only does SSR

96-8p unequivocally affirm that, at step five of the

sequential evaluation, a claimant typically cannot be

found “not disabled” on the grounds that the claim-

ant can perform “part-time” work, but in addition, the

ruling clarifies that RFC assessments must be based

on a “function-by-function” assessment of a claim-

ant’s functional capacity.

These two policy statements, properly incorpo-

rated into the representation of Social Security dis-

ability claimants, should significantly change the face

of Social Security disability adjudication for those

who apply this Ruling to their work.

§1101 SSR 96-8P — Six Major Points

Social Security Ruling 96-8p makes six major

points about an individual’s residual functional ca-

pacity (RFC) and/or its assessment, as follows:

1. Ordinarily, RFC is an assessment of

an individual’s ability to do sustained

work-related physical and mental ac-

tivities in a work setting on a regular

and continuing basis. A “regular and

continuing basis” means 8 hours a day,

for 5 days a week, or an equivalent work

schedule.

2. The RFC assessment considers only

functional limitations and restrictions

that result from an individual’s medi-

cally determinable impairment or com-

bination of impairments, including the

impact of any related symptoms. Age

and body habitus are not factors in as-

sessing RFC. It is incorrect to find that an

individual has limitations beyond those

caused by his orher medically deter-

minable impairment(s) and any related

symptoms, due to such factors as age and

natural body build, and the activities the

individual was accustomed to doing in

his or her previous work.

3. When there is no allegation of a physi-

cal or mental limitation or restriction of

a specific functional capacity, and no

information in the case record that there

is such a limitation or restriction, the

adjudicator must consider the individual

to have no limitation or restriction with

respect to that functional capacity.

4. The RFC assessment must first identify

the individual’s functional limitations

or restrictions and assess his or her

work-related abilities on a function-by-

function basis, including the functions in

paragraphs (b), (c), and (d) of 20 C.F.R.

404.1545 and 416.945. Only after that

may RFC be expressed in terms of the

exertional levels of work, sedentary,

light, medium, heavy, and very heavy.

5. RFC is not the least an individual can do

despite his or her limitations or restric-

tions, but the most.

6. Medical impairments and symptoms,

including pain, are not intrinsically ex-

ertional or nonexertional. It is the func-

tional limitations or restrictions caused

by medical impairments and their re-

lated symptoms that are categorized as

exertional or nonexertional.

SSR 96-8p: www.ssa.gov/OP_Home/rulings/di/01/

SSR96-08-di-01.html

§1102 Point One — RFC “Ordinarily”

Defined in

Terms of a 40-Hour Workweek

§1102.1 History of RFC and

Vagueness

“Residual functional capacity” is a legal term of art

which, prior to the issuance of Social Security Ruling

96-8p, had been only vaguely defined in regulations

such as 20 C.F.R. §§ 404.1545 and 416.945 (1986) and

rulings such as SSRs 82-53, 83-10, and 86-8. These

definitions either included or referenced such ancillary

terms of art as “sustained activity on a regular basis,”

but no term addressed whether RFC was to be assessed

in terms of full-time work capability; nor had the Social

Security Administration published any other defini-

tive policy statement which addressed the propriety of