Maine Social Security Disability Lawyer

Disability and the inability to get work

Colorado Springs disability attorney Tomasz Stasiuk recently published an article entitled Criminal records, hire-ability, and Social Security disability. He writes:

The problem is that in disability cases, Social Security does not take hire-ability into consideration when deciding if an individual is disabled. In Social Security disability and Supplemental Security Income (SSI) cases, Social Security only looks at whether an individual is able to perform the duties of the job. Social Security does not consider whether an individual is actually likely to be hired for a job.

Tomasz is exactly right. The inability to get work, by itself, does not lead to a disability finding. Social Security's regulations, specifically 20 CFR 404.1566(c), state:

Inability to obtain work. We will determine that you are not disabled if your residual functional capacity and vocational abilities make it possible for you to do work which exists in the national economy, but you remain unemployed because of—

(1) Your inability to get work;

(2) Lack of work in your local area;

(3) The hiring practices of employers;

(4) Technological changes in the industry in which you have worked;

(5) Cyclical economic conditions;

(6) No job openings for you;

(7) You would not actually be hired to do work you could otherwise do; or

(8) You do not wish to do a particular type of work. 

At step 5 of the sequential evaluation, Social Security will match your functional abilities against the requirements of of jobs in the national economy. For the purposes of a Social Security disability determination, it doesn't matter if no employer would hire you.

I can lift, but I can't carry

The ability to lift and/or carry is one of the basic building blocks of a worker's Residual Functional Capacity (RFC). However, the focus is almost always on the lifting, and it shouldn't be.

I had a conversation recently with a client with leg problems due to neuropathy. I asked about lifting 20 pounds (required for light exertional work). The client replied "I can lift that, but I can't do anything once I've got it." He could lift but he could not carry.

Several medical conditions (including degenerative joint disease of the hip, knee, or ankle, peripheral neuropathy in the feet, or peripheral vascular disease) can allow a claimant to lift but not carry 20 pounds or more on a sustained basis. A claimant must have the ability to both lift and carry 20 pounds for the light exertional level.

This issue is particularly important for those claimants age 50 or over, since (once past relevant work is precluded at step 4) they must have an RFC at the unskilled sedentary exertional level to prevail under the medical vocational guidelines at step 5. 

Borderline Age Situations

Social Security considers the age of the claimant at step 5 of the sequential evaluation. Age plays no role in steps 1 through 4.

Age is a vocational factor which dictates where you fall in the Medical-Vocational Guidelines, which are used to determine disability at step 5 for claimant's who have physical impairments. The Guidelines may achieve different results depending on whether the claimant is under 50, age 50 to 54, or age 55 or older.

So what does one do when the claimant is on the cusp of a higher age category at the hearing? Or what does one do when the claimant crosses to the higher age category while the claim is pending? 

These are call borderline age situations, and the SSA has a regulation on point. 20 CFR 404.1563(b) states:

We will not apply the age categories mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case.

POMS section DI 25015.005 describes factors to consider in borderline age situations.

A Regular and Continuing Basis

Social Security must evaluate a claimant's ability to work on a regular and continuing basis at steps 4 and 5 of the sequential evaluation. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule (essentially, full-time work). See Social Security Ruling 96-8p and POMS Section DI 24510.057.

For most of the disability and SSI claims that I see, the claimant's ability to work on a regular and continuing basis is severely compromised. 

A disability lawyer should develop evidence that will lead the decisionmaker to the conclusion that full-time work is not possible. Several different types of evidence can help: 

• At the top of the list is a medical source statement from a treating physician or other medical professional stating that the claimant cannot perform essential work-related functions on a full-time basis.
• A statement of a friend or a relative.  This statement should be considered by the ALJ regarding the severity of the claimant's impairments. See Social Security Ruling 06-03p.
• Keep a journal. This will help to track your symptoms, and how many "bad days" you experience. 
• The claimant's testimony at the hearing. I always spend time preparing my client for this testimony, because I want to present a genuine and authentic portrait of what the claimant's life is now like. I often have the claimant discuss specific examples of events that were missed due to the impairments.

You will be found disabled at step 5 if the judge determines that you cannot work on a regular and continuing basis. You should present compelling evidence to lead the judge to this conclusion.

Claimants age 55 and older

The Social Security Administration has special rules for claimants age 55 and over. If you can no longer perform your past relevant work, then Social Security must take your age into account when considering whether or not you can do other work at step 5 of the sequential evaluation. This principle is embodied in the Medical-Vocational Guidelines, which are used by the SSA to determine disability at step 5.

I think it is very helpful for claimants age 55 or older to have a disability lawyer's help with their initial disability application, because there are some common mistakes to avoid. I have worked with many clients in this age group, and often a claim can be granted without the necessity of a hearing if the initial application is completed properly.

I ensure that I have a winning theory of the case before filing. Then, I help the client thoroughly complete the work history report, being sure to fully describe the requirements of past work. I analyze the past work for transferable skills, which can sink a disability claim. Then, I describe the claimant's functional limitations, and ensure that all sources of medical treatment are listed, so that Social Security gets a complete medical record. Lastly, I ask the client which of his or her doctors are most supportive, so that I can get a doctor's opinion.

For the lawyer, this process means front-loading the time spent on a disability claim. The hours of getting to know a client, the medical history and work history, are all spent before even applying for benefits. For the client, getting help with the disability application means that common mistakes are avoided, all the necessary details are included, and the application is supported by a winning theory of the case.

If you are age 55 or older and can no longer do the kind of work you've done in the past, consider getting a Social Security disability lawyer involved as early as possible. There is no up front cost, and no fee at all unless your claim is successful. 

Education and Social Security Disability

At step 5 of the sequential evaluation process, Social Security considers four factors to determine whether or not you are disabled: your residual functional capacity, your age, your education, and your work experience. 20 C.F.R. 404.1520(a)(4)(v).

Social Security defines several educational levels. See 20 C.F.R. 404.1564.

• Illiteracy. Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name.
• Marginal education. Marginal education means ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs. We generally consider that formal schooling at a 6th grade level or less is a marginal education.
• Limited education. Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. We generally consider that a 7th grade through the 11th grade level of formal education is a limited education.
• High school education and above. High school education and above means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th grade level or above. We generally consider that someone with these educational abilities can do semi-skilled through skilled work.
• Inability to communicate in English. Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, we consider a person's ability to communicate in English when we evaluate what work, if any, he or she can do.

Upcoming posts will discuss the effect of your education level upon the step 5 disability determination.

More on Social Security Denial Explanations

An error in the Explanation of Determination attached to your denial letter can present an opportunity for your Social Security disability attorney to practice some legal jujitsu. The error can be used to support an argument for reversal at the next stage of review. This argument is the most powerful when, but for the error in analysis, the claim should be granted.

For example, I have a new client who recently received his initial denial letter from Social Security. The explanation stated that the claimant cannot do his past work, but concluded that there is other work involving less strenuous lifting that the claimant could perform. That's standard step 5 language.

The problem with that analysis is that this claimant is almost 60 years old. Once you rule out past relevant work, if you limit a 60 year old claimant to jobs with no heavy lifting, that claimant must be found disabled (in the absence of transferable skills or education that leads to direct entry to skilled work) under Social Security's own Medical-Vocational Guidlelines.

This claim should be granted. A 60 year old claimant with an unskilled work background grids "disabled" even at the medium exertional level. {correction: actually, not quite. To grid "disabled" at the medium exertional level, a claimant must have an unskilled work background and a limited education or less. See Rule 203.02}

A recent article by Jericho, NY disability attorney Jeffrey Delott started me thinking more about this issue. Jeff wrote that he always highlights the defects in the explanation when he makes an on the record request at the hearing level.  Jeff's blog is always interesting reading, since most of his articles involve actual case stories. The blog also has a spiffy new design.

Sedentary exertional level

This query brought a visitor to my blog: What is the sedentary exertional level for SSA?

Social Security classifies the physical exertion requirements of jobs as sedentary, light, medium, heavy and very heavy. See 20 C.F.R. 404.1567. Social Security gives those terms the same meaning as they have in the Dictionary of Occupational Titles.

The sedentary exertional level involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like files or other small items. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary. Jobs are sedentary if walking and standing are required only occasionally, and the other sedentary criteria are met.

Since being on one's feet is required "occasionally" at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. Further, most unskilled sedentary jobs require good use of the hands and fingers. See Social Security Ruling 83-10.

The sedentary exertional level is an important landmark in the Social Security disability landscape.

If there are no sedentary jobs in a claimant's past relevant work, a claimant over 50 who is limited to unskilled sedentary work will win at step 5 via the medical-vocational guidelines.

However, a claimant under the age of 50, or a claimant over 50 with job skills that readily transfer to a significant range of skilled sedentary work, will need additional limitations to prevail. 

The Medical-Vocational Guidelines

The Medical-Vocational Guidelines are used by Social Security to determine disability due to exertional impairments at step 5 of the sequential evaluation process. The guidelines, or the "grids," consider a claimant's exertional level (that's the medical part) and the claimant's age, education and work history (the vocational factors). Depending upon these medical-vocational factors, the SSA determines that a person is either disabled or not disabled.

In general, the grids are not where you want to be as a claimant, because the grids direct a finding of "not disabled" in most situations. In fact, every claimant loses under the grids until age 50 (or age 45 if unable to communicate in English).

However, the grids are a two-edged sword. Once you reach the age of 50 (and have no transferable skills or education that allows direct entry to skilled work), the grids direct a finding of "disabled" at the sedentary exertional level. The SSA presumes that the transition to unskilled sedentary work is too difficult for these claimants. At age 55, that same claimant grids "disabled" at the light exertional level.

Let's look at an example to see how the grids operate.

Residual Functional Capacity

Your Residual Functional Capacity (RFC) is the cornerstone of your Social Security disability claim. Unless you meet a listed impairment, the administration's assessment of your RFC will decide the outcome of your disability claim.

The RFC is Social Security's assessment of your abilities to do sustained physical and mental activities on a regular and continuing basis in a work setting. The RFC considers only those funtional limitations resulting from medically determinable impairments.

The RFC is used to determine whether or not you can return to your past relevant work (step 4 of the sequential evaluation process) or do other work (step 5 of the sequential evaluation process).

For more about your RFC, read Social Security Ruling 96-8p.