Maine Social Security Disability Lawyer

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.

Work Performed under Special Conditions

I have a hearing today with one of the new judges in Manchester, New Hampshire for a claim involving work under special conditions. 

Social Security's regulations discuss work activity in 20 C.F.R. 404.1573, and work under "special conditions" is covered in 404.1573(c):

If your work is done under special conditions, we may find that it does not show that you have the ability to do substantial gainful activity. Also, if you are forced to stop or reduce your work because of the removal of special conditions that were related to your impairment and essential to your work, we may find that your work does not show that you are able to do substantial gainful activity. However, work done under special conditions may show that you have the necessary skills and ability to work at the substantial gainful activity level. Examples of the special conditions that may relate to your impairment include, but are not limited to, situations in which—

(1) You required and received special assistance from other employees in performing your work;

(2) You were allowed to work irregular hours or take frequent rest periods;

(3) You were provided with special equipment or were assigned work especially suited to your impairment;

(4) You were able to work only because of specially arranged circumstances, for example, other persons helped you prepare for or get to and from your work;

(5) You were permitted to work at a lower standard of productivity or efficiency than other employees; or

(6) You were given the opportunity to work despite your impairment because of family relationship, past association with your employer, or your employer's concern for your welfare.

My hearing today involves section 404.1573(c)(4). In this particular claim, a 20-year old young man with Asberger's syndrome is working as a dishwasher in a local hospital kitchen. However, this work is possible because his mother is making sure he gets to and from work each day. The claimant lives at home. To maintain even a part-time work schedule, the mother must remind the claimant to go to bed at a reasonable hour on the night before a work day, she wakes him up on work days, and drives him to and from work. Without the mother keeping track of the schedule and making sure that he gets to work each day on time, he would not be able to sustain the employment.

Now, in this case the work is part-time and not substantial gainful activity (SGA) based on the wages. However, even the wages were above the SGA level, I would argue that it would not be SGA due to the special conditions.

At the hearing I will try to persuade the judge that these special conditions enable the part-time employment, and that the claimant could not sustain any employment in the absence of the special conditions. As a result, a finding a "disabled" at step 5 of the sequential evaluation is appropriate.

{update: the judge agreed. The claim was granted.}

Social Security's Date Last Insured

I have had conversations recently with disability claimants having problems with their date last insured (DLI).

Social Security disability is an insurance program, and a portion of the FICA payroll taxes withheld from every paycheck pays the disability premium. However, if you stop working, you stop paying the premium. Eventually, your disability insurance will lapse. The date your insured status ends is called the "date last insured." The date last insured is always the last day of a quarter. So the date is always March 31, June 30, September 30 or December 31.

The date last insured can be a trap for the disability claimant. If you have a date last insured that is in the past, or will be in the past by the time of your hearing, then you must pay special attention to this issue.

To prevail with a Social Security disability claim, you must show that your were disabled prior to your date last insured.  It does not matter how badly disabled you are today. If you cannot demonstrate that you were disabled prior to your DLI, you will be denied disability benefits (you still may be elegible for SSI benefits, but you must qualify financially for SSI benefits).

I spoke with a new client whose claim was denied by DDS due to lack of medical evidence prior to her date last insured of December 31, 2008. For the years immediately around the DLI she was without medical insurance, and could not afford treatment. So there are no contemporaneous medical records to be had. However, there is still a path to benefits for her claim. First, her main impairment is peripheral artery disease (PAD), which is a progressive disease. So it's not like she became disabled overnight. Secondly, she was having severe symptoms prior to her DLI, and these symptoms put her out of work. For this claim, it seems to me that the DLI problem can be resolved favorably with a strong retrospective opinion from her treating physician.

Social Security Ruling 83-20 governs the onset of disability. The Ruling recognizes the need for inferences, and states that:

In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case.

Be sure to read Ruling 83-20 carefully if you need to infer an onset date. Notably for my new client, the example used in the Ruling to infer an onset date involves peripheral artery disease, so the Ruling is right on point for this new case. Also, the Ruling states that lay evidence is relevant to the onset date inquiry.

Not all DLI problems can be favorably resolved. I met a gentleman last week with a date last insured of December 31, 2006. He has severe COPD, and would certainly be found disabled today. However, he worked abroad as a pilot for several years, and was not required to pay U.S. taxes, including Social Security taxes, during those years. So his date last insured for Social Security disability was reached in 2006, even though he was still working abroad through 2007. Unfortunately, there is nothing I can do for this fellow. He has too many assets for SSI, and he cannot qualify for Social Security disability as of his DLI, since he was working above the SGA level at that time.

If you have a date last insured that has passed, please consider involving a Social Security disability attorney right away. Without specific development of the medical record on the issue of DLI, you are at best rolling the dice at the hearing level. If you get the right judge, you might be okay. But even the most sympathetic judge is still bound by the medical evidence.

Light Exertional Work

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 light exertional level involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing.

Light exertional work is described in Social Security Ruling 83-10:

the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk. They require use of arms and hands to grasp and to hold and turn objects, and they generally do not require use of the fingers for fine activities to the extent required in much sedentary work.

Exertional limitations are part of your Residual Functional Capacity,  which is used at steps 4 and 5 of Social Security's sequential evaluation. 

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.

Past Relevant Work and Job Skills

 

An important aspect of your past relevant work is the skills you may have learned on the job. Social Security analyzes skills using the Specific Vocational Preparation (always referred to as SVP) criteria set forth in Appendix C of the Dictionary of Occupational Titles.

The SSA recognizes three classifications of skill level: unskilled work, semi-skilled work and skilled work. Let's look at each:

Unskilled work is defined as "work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. ... a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled jobs." See 20 C.F.R 404.1568(a).

Semi-skilled work "needs some skills but does not require doing the more complex work duties." Semi-skilled work is "less complex than skilled work, but more complex than unskilled work." 20 C.F.R 404.1568(b).

Skilled work requires a person to use judgment. "Skilled work may require laying out work, estimating quality, determining the suitability and needed quantities of materials, making precise measurements, reading blueprints or other specifications, or making necessary computations or mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity." 20 C.F.R 404.1568(c).

Why does this matter? Well, after Social Security has determined that you cannot return to your past relevant work at step 4 of the sequential evaluation process, the SSA considers your ability to do other work. And when assessing your ability to do other work, your job skills are a strong factor. How strong? If those acquired job skills can transfer to other jobs you are able to perform, your disability claim will be denied.

There will be more on the topic of job skills and transferability of skills in upcoming posts. To receive the frequent updates to this site, please subscribe to my feed. Updates are also available by email.
 

Not all Past Work is Past Relevant Work

Social Security considers your Past Relevant Work (PRW) at step 4 of the sequential evaluation process. It is important to properly define your past relevant work, because it can only hurt you in a Social Security disability claim. If Social Security determines that you have the capacity to return to your PRW, your disability claim will be denied.

But not all past work qualifies as past relevant work. Past relevant work is "work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it." 20 C.F.R. § 404.1560(b)(1). Let's look at each requirement:

• First, past relevant work must be in the past 15 years. The 15 years runs back from the date of determination, or from the date last insured, whichever is earlier.
• Second, past work must have been substantial gainful activity to qualify as PRW. If you were an employee, the work must have been performed at the SGA level. If you were self-employed, see 20 C.F.R. 404.1575. Remember that an unsuccessful work attempt is not substantial gainful activity and therefore not past relevant work. By definition, an unsuccessful work attempt must occur after the onset of disability. See 20 C.F.R. 404.1574(c).
• Third, the work must have "lasted long enough for you to learn to do it." Unskilled work can be learned in less than 30 days. Skilled work takes longer. The length of time depends on the nature and complexity of the work. There are no firm rules here, but the vocational training times set forth in the Specific Vocational Preparation (SVP) section of Appendix C of the DOT are a good guide.

These rules are important. For certain claims, eliminating a problematic job from past relevant work can make the difference between winning and losing.

Medically Determinable Impairment

 

Social Security requires a medically determinable physical or mental impairment as the basis for a finding of disability. The "medically determinable" language is part of the definition of disability in the Social Security Act itself. See 42 U.S.C. 423(d)(1)(A).

A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms. Please see 20 C.F.R. 404.1508. Signs, symptoms and laboratory findings are defined by regulation. Also, Social Security Ruling 96-4p discusses this requirement, and is a good starting place for research on the issue.

The point of the requirement for a medically determinable impairment (MDI) is to ensure there is a valid basis for your claim, and for the functional limitations you are asserting.

Some illnesses are problematic in the MDI department, however. Social Security has had to clarify that the MDI requirement is met for certain illnesses. For example, Social Security has declared that chronic fatigue syndrome, post-polio sydrome and fibromyalgia all satisfy the requirement for a medically determinable impairment. As a result, these impairments can medically support a determination of Social Security disability.

Medium Exertional Work

A client recently retained me after receiving an inital denial of his Social Security disability claim. He over 55 years old, and can no longer do his past relevant work, partly due to knee and ankle problems resulting from an old injury.

I have reviewed the disability claim file, and he was denied disability because a doctor at DDS reviewed his medical records and assessed an RFC for medium work.

What does medium work require? Medium work means lifting up to 25 pounds frequently (from 1/3 to 2/3 of the day) and up to 50 pounds occasionally (up to 1/3 of a day). See 20 C.F.R. 404.1567(c). Medium work means being on your feet for most of a workday. Also, the full range of medium work requires both frequent stooping and frequent crouching. See Social Security Ruling 83-14.

My new client cannot do these things. To win at Reconsideration, the medical evidence of record must demonstrate his strength limitations.

Reserved to the Commissioner

Certain findings in a Social Security disability case are reserved to the Commissioner. Particularly, the determination of whether or not your are disabled is reserved to the Commissioner. See 20 C.F.R. 404.1527(e). Therefore, your doctor's opinion that you are disabled in given no special significance by the SSA.

Ruling 96-5p gives five examples of issues that are reserved to the Commissioner:

•  
  1. Whether an individual's impairment(s) meets or is equivalent in severity to the requirements of any impairment(s) in the listings;
  2. What an individual's RFC is;
  3. Whether an individual's RFC prevents him or her from doing past relevant work;
  4. How the vocational factors of age, education, and work experience apply; and
  5. Whether an individual is "disabled" under the Act.

The theory is these are administrative findings that would direct the determination of disability, and must therefore be made by the SSA. In practice, however, it is terribly frustrating to have a treating doctor's opinion dismissed by a DDS examiner because the issue is reserved to the Commissioner.

To maximize the importance of the treating doctor's opinion, a Social Security disability attorney will ask your treating doctor for specific opinions regarding the nature and severity of your impairments. These opinions are usually expressed in a Medical Source Statement from the treating doctor. This opinion must be given controlling weight by Social Security, as long as the opinion is well supported, and not inconsistent with the other substantial evidence in the case record.

More on the topic of controlling weight soon.

Global Assessment of Functioning

The Global Assessment of Functioning (GAF) is a numeric scale (from 0 to 100) used by doctors and mental health clinicians to rate the social, occupational and psychological functioning of adults.

The scale is found in the Diagnostic and Statistical Manual of Disorders (DSM-IV), which is published by the American Psychiatric Association, and provides the diagnostic criteria for mental disorders.

A GAF score is a useful piece of evidence for a Social Security disability claim. The GAF score is often included in mental health progress notes or evaluations, and it provides an excellent snapshot of the patient's functioning.

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 Bench Decision

At a Social Security disability hearing, sometimes it is very clear that the claim should be granted. In such cases, a bench decision is available to the administrative law judge. A bench decision must be a fully favorable decision.

For a bench decision, the judge sets forth his reasons for granting the claim orally "from the bench" at the hearing. The written decision that follows within a few days is just a few paragraphs in length, and basically incorporates by reference the reasons given on the record at the hearing. Bench decisions are governed by HALLEX I-5-1-17.

Bench decisions preserve scarce resources at the SSA, since staff writers do not have to spend as much time producing favorable decisions. The use of bench decisions is part of the SSA's strategic plan to be more efficient. It makes sense. If you are granting the claim, why write a lengthy decision?

The judges at the Portland, Maine ODAR use bench decisions frequently when granting a claim. And that is one of the reasons that the processing time for claims at that hearing office is one of the lowest in the country.

In contrast, judges at many other ODARs have not embraced the bench decision. I do not understand why. It is a real timesaver. Try a bench decision next time, Judge. Your staff writers will love you for it, and your hearing office director will appreciate the added efficiency, which will result in more decisions from your hearing office each month.

Social Security Rulings

Social Security Rulings are policy interpretations issued by the SSA. Social Security Rulings are binding on all components of the SSA, and are to be relied upon as precedents when adjudicating other cases. See 20 CFR 402.35(b)(1).

Social Security disability lawyers refer to the Rulings regularly. The Rulings contain very useful explanations of SSA's policy, and offer more detail than the regulations. If there is a Ruling on a topic at issue in your case, that Ruling is mandatory reading for your disability lawyer.

Sometimes, however, it can take a little while to find the particular ruling you need. This is partly due to the Rulings' odd numbering system.

Recently, the SSA published a new index of the rulings, grouping them by subject matter. It is a very helpful index, and I have added it to the "Resources of Note" section on the sidebar of this blog.

Hat tip to JOA on the Connect discussion board for the catch.

24 Month Medicare Waiting Period

An award of disability benefits under the Social Security disability insurance program comes with Medicare insurance. But not right away. Rather, the insurance begins two years after your date of entitlement. Your date of entitlement is your onset date plus the 5 month Title II waiting period.

In a typical disability case, that waiting period may not matter. Often claimants are out of work for a while before they apply for disability benefits, and if the claim is initially denied, two years from the date of entitlement may pass before a hearing is held and a decision issued.

But for claimants with the most serious and life-threatening medical conditions, the medical insurance is a necessary part of the program. For those claimants, the 24 month waiting period can present a tremendous hardship.

Waiting two years for Medicare insurance benefits has a tremendous human cost for those who are too sick to work, too soon for Medicare. Fortunately, fixing this problem is the topic of ongoing political discussion.

The Partially Favorable Decision

There are three possible decisions for a Social Security disability claim: fully favorable, unfavorable, and partially favorable. A partially favorable decision grants part of a disability claim.

Occasionally, a partially favorable decision makes a determination that you were disabled for a period of time, but are no longer disabled and not entitled to ongoing benefits. This is essentially a closed period. 

Usually however, a partially favorable decision finds that you are currently disabled, but decides that you became disabled under SSA's rules sometime after your alleged onset date. You will receive ongoing disability benefits. However, a later onset date means a lesser amount of retroactive benefits than would have been paid with the original alleged onset date

This can be a big deal. I recently saw a partially favorable decision that used an onset date 17 months later than the alleged onset date. So while the client will receive ongoing benefits, 17 months of past benefits were left on the table. With a PIA of $800, that is $13,600.

The decision whether or not to appeal a partially favorable determination presents a dillemna for the claimant. If the appeal is successful, you will be found disabled as of your alleged onset date, and will recoup those lost benefits.

However, by appealing a partially favorable determination, you appeal the entire decision. This means that on appeal you could be found "not disabled," and would lose your entitlement to ongoing benefits. This does not usually happen, but it is a risk that must be considered.