My colleague Jonathan Ginsberg posted this before I did. So did Charles Hall.
Here is John Oliver commenting on our broken disability system.
My colleague Jonathan Ginsberg posted this before I did. So did Charles Hall.
Here is John Oliver commenting on our broken disability system.
A person’s mental health is often the basis of a disability claim. That person’s past relevant work (PRW) is often precluded by their mental health symptoms at Step 4 of the Social Security’s sequential evaluation. Frequently assessed functional limitations due to mental health symptoms, such as a limitations to “simple tasks” or “no interaction with the general public” are enough to eliminate that person’s ability to perform their PRW.
However, those limitations do not help much when considering the person’s ability to perform other work at Step 5 of the sequential evaluation. Limitations to “simple tasks” or “no interaction with the general public” do not prevent application of the Medical-Vocational guidelines at Step 5. A person with those mental health limitations alone will not be found disabled at Step 5 in the absence of physical impairments.
That is why I always explore physical issues in mental health claims, even when the client says that the reason they can’t work is their mental health. Their physical limitations can have an oversized effect in proving that they can’t perform other work at Step 5, due the the Medical-Vocational Guidelines, which use physical limitations and age as the primary vocational factors.
For those over the age of 55, that means a limitations to Light exertional work will direct a finding of “disabled.” The limitation to “simple tasks” due to mental health symptoms plays a role here as well, because a limitations to simple tasks precludes the transfer of acquired job skills. That combination of impairments is a winning combination for those over 55.
I had an in-person hearing at the Portland Hearing office last week, on September 10th. When I signed in, I noticed that no one had signed in to the hearing office since August 22nd, 3 weeks before. Sign-ins before that were similarly sparse.
The hearing offices used to have busy public spaces. Back in the day, there would be a full waiting room of people waiting for their hearings. Sometimes all four hearing rooms were occupied with judges holding hearings in disability cases. Today, the hearing offices are like ghost towns, and usually the only hearing room in use is the one for your hearing.
This is not because there are fewer hearings. Rather, video hearings (and to a lesser extent, telephone hearings) have taken over. Claimants and their Representatives do not need to travel to the hearing office for their hearing. They can stay at home and have the hearing on their laptop via Microsoft Teams, which operates like a Zoom call. The technology works great. Video hearings are a great benefit to claimants, to Representatives, and to ALJs.
When video hearings started years ago, I was skeptical due to a perceived “empathy gap.” I felt that there was a benefit for the client to be in person, in front of the judge, to give testimony. I was getting better outcomes with in-person hearings. But now that the judges are holding most of their hearings this way, I am no longer seeing the empathy gap. Everyone has gotten used to the technology.
Sometimes my client wants to go in person, and that is always fine. But I no longer tell my clients that an in-person hearing is strongly preferred. The video hearings get the same results.
There is one drawback. Once a claimant opts in for a video or telephone hearing, that hearing can then be conducted by a judge in an out-of-state hearing office. I have had video hearings assigned to judges in New Hampshire, upstate New York, and most recently, Rhode Island. Now all these hearings had great outcomes. But I know the judges here at home pretty well, and having the case heard by a new judge adds additional uncertainty to the hearing process.
One of the most frequent limitations assessed by Social Security due to a claimant’s mental health symptoms is a limitation to simple tasks. That limitation alone is not disabling, by any means. But it can have a significant effect on a disability claim when combined with physical limitations. For claimants over the age of 50 who have performed skilled or semi-skilled work during the past 5 years, a limitation to simple tasks can make the difference between being awarded disability benefits and being denied those benefits.
Sometimes the obstacle to receiving disability benefits is a person’s ability to perform their past relevant work (PRW), which is considered at Step 4 of Social Security’s sequential evaluation. When that PRW is Sedentary, it can be hard to rule out due to physical limitations alone.
Sedentary work is usually skilled or semi-skilled. A limitation to carrying out simple tasks (and therefore unable to carry out detailed tasks) precludes the performance of skilled work at Step 4. A limitation to simple tasks also prevents the transfer of acquired job skills at Step 5. Therefore, a person limited to unskilled Sedentary work will prevail at age 50, via Medical-Vocational Rule 201.14. The same claimant, in the absence of a mental limitation to simple tasks, may lose at Step 4 or Step 5 (if there are transferable skills).
I just signed up a new client who was initially denied disability benefits at step 4 of the sequential evaluation, based upon a job he last performed in 2016.
It is often an issue in a disability claim when a claimant with physical impairments has PRW at the sedentary exertional level, because that work can be hard to rule out.
In this case, however, the PRW is irrelevant because it was performed more than 5 years ago. Social Security adopted a 5-year PRW period back in June. This determination was made more than a month later.
It should be easy to fix at Reconsideration.
If you have worked at the SGA level at any time since the alleged onset date of your Social Security disability claim, it can be problematic for your claim. You must have (or expect to have) a 12-month period of disability to qualify for Social Security disability (or have a condition which is expected to result in death). That means means 12 months or longer with no work at the SGA level.
However, if your work after onset lasted for six months or less and ended due to your impairments, then it may qualify as an unsuccessful work attempt, and not be held against you. The criteria for an unsuccessful work attempt (UWA) are found in 20 C.F.R. 404.1574(c). For reference, see also Social Security Ruling 84-25.
An example might help. Consider a case with an alleged onset date of 11/20/2022. However, from 6/01/2023 – 9/30/2023 this claimant returned to work, and earned wages above the level of SGA for 4 months. But the work became too much due to the claimant’s symptoms, and they had to stop. They subsequently filed a claim for Social Security disability benefits.
So there it is: 4 months of work above the level of SGA, smack in the middle of the 12-month disability period. As a result, there is not a 12 month period of disability, as required. If there were not an exception for an unsuccessful work attempt, the claim would either have to be denied at Step 1 of the sequential evaluation process, or a new onset date of 10/01/2023 (after the 4 months of SGA work) would be needed.
However, with the UWA, the 4 months of work is excused. The disability period runs from the original onset date of 11/20/2022. This results in an additional ten months of retroactive benefits for the claimant.
Social Security uses a 5-step sequential evaluation to determine disability. Step 4 comprises your ability to perform your past relevant work (PRW), both as actually performed by you, and as generally performed in the national economy.
There are a number of factors that are not considered at step 4. POMS DI 25005.001C. states:
When evaluating a claimant’s ability to do PRW at step 4, do not consider:
- age,
- education,
- transferability of skills,
- whether PRW exists in significant numbers in the national economy,
- whether PRW was done in a foreign country,
- whether PRW was an elected position,
- whether PRW was in the military and the claimant is no longer in the military,
- whether the claimant has maintained licensure or currently meets the qualifications for licensure to do PRW,
- whether the employer had accommodations for the claimant that are no longer available,
- whether the claimant would be hired by an employer,
- whether PRW would only be available on a part time or seasonal basis,
- whether the claimant would have to relocate to do the job, or
- whether a job opening exists.
This list from the POMS is a useful reference.
Several of the items on the list would seem, as a practical matter, like they might be considered at step 4. Of course, the first items on the list – age, education and transferability of job skills – are not considered until step 5. And there is a U.S. Supreme Court case stating that past relevant work does not have to exist in substantial numbers; see Barnhart v. Thomas, 540 U.S. 20 (2003).
The rest of the list appears relevant to the step 4 determination, so it is important to know that these items are not relevant, as a matter of policy. I often need to explain to clients that the fact that they would never be hired by an employer is irrelevant, or that maintaining a license is irrelevant. You do not want to build your theory of the case around an item on this list. Find other reasons why the claimant cannot perform past relevant work.
Getting past step 4 is important in every case, but for those age 55 or older, the ability to perform past work is often the focus of the hearing.
In view of the seismic rule change reducing the past relevant work period to 5 years, and new Ruling 24-2p, it is a good time to review the various issues involved with past relevant work (PRW).
At Step 4 of Social Security’s sequential evaluation, the SSA considers your ability to perform your past relevant work. This is a key step in the process, because if the SSA determines that you retain the residual functional capacity to return to your past relevant work, your disability claim will be denied.
Social Security will try to match, in a very abstract way, your current abilities to the requirements of your past work. The SSA looks at how each job was actually performed by you, and how those jobs are generally performed in the national economy. Social Security simply compares your abilities with the requirements of each of the previous jobs. It doesn’t matter if the past job doesn’t exist anymore.
Remember that not all past work is past relevant work. Under the new rule, the job must have lasted for at least 30 days. It must have been performed within the past 5 years. It must have been performed at the SGA level. (remember, even part-time work at SGA can be past relevant work).
You may have learned job skills at your previous work. If your acquired job skills can transfer to skilled or semi-skilled work that you are still able to do, it is problematic for your claim at step 5 of the sequential evaluation.
Eliminating your past relevant work is important for all claimants, but it is particularly important for Social Security disability disability claimants over the age of 55.
If you have a claimant awaiting at the hearing level who was denied benefits by DDS at Step 4 due to the ability to perform a past job, and that job was last performed more than 5 years ago, that job no longer counts as PRW.
Take a look at the case to see if an on the record request is appropriate. Ideally, any remaining PRW would be clearly precluded by the DDS RFC assessment, and the claimant is old enough to be found disabled by direct application of the Medical-Vocational guidelines.
Here is some sample language, excerpted from an on the record request I just filed:
This is an on the record request for John Smith.
The claimant suffers from severe degenerative disc disease, status post cervical fusion, among other severe impairments. DDS assessed lifting and carrying limitations of 10 pounds, in addition to other limitations (Reconsideration DDE, Case Documents, “A” section). Although the claimant has more severe functional limitations than assessed by DDS, his claim should be granted on the record based upon the DDS RFC because of the recent revision to the past relevant work (PRW) period.
This claim was denied at Reconsideration at Step 4 based upon a Sedentary job last held in 2010. SSA’s Final Rule amending the PRW period from 15 years to 5 years became effective on June 22, 2024. As a result, that 2010 Sedentary job no longer constitutes past relevant work. See also Social Security Ruling 24-2p.
Based upon the new PRW 5-year rule, the claimant’s sole past relevant work is as a driving instructor, which was performed at the Light exertional level (Work History Report, Case Documents, “E” section), and is generally performed in the national economy at the Light exertional level (see INSTRUCTOR, DRIVING, DOT code 099.223-010).
At Step 4 of the sequential evaluation, the claimant’s PRW is precluded, based upon the 10-pound lifting/carrying limitation of the DDS RFC. His PRW was at the Light exertional level, which requires lifting and carrying up to 20 pounds occasionally. See 20 C.F.R. 404.1567(b) and Social Security Ruling 83-10.
At step 5 of the sequential evaluation, the claimant does not have acquired job skills that transfer to “a significant range” of jobs within his limited RFC, as required by Section 202.00 (e) of the Medical-Vocational Guidelines. He does not have recent education that allows direct entry to skilled work within his limited RFC. The claimant is 60 years old. At the Sedentary exertional level, he grids “disabled” by direct application of Medical Vocational Rule 201.06. At the Light exertional level, he grids “disabled” by direct application of Medical Vocational Rule 202.06.
A Recommended Fully Favorable Decision Checksheet is attached.
A Fully Favorable decision is respectfuly requested.
7/15/2024 Update: The OTR request was granted, and a Fully Favorable decision issued.
In January, Social Security added claims at Initial and Reconsideration to its status report in Electronic Records Express (ERE). After 5 months using this additional feature, I have found it to be hugely helpful. It is a marked improvement for those of us managing Social Security disability claims.
Social Security has now added more data to this report. A Representative can now download an Excel spreadsheet that provides additional information, including:
This is a terrific update. You can now see at a glance if the case has been received by DDS, assigned to a disability examiner, if it was closed and when, and if it was sent to Federal Quality Review. Each one of these items previously required a telephone call to the field office or to DDS to determine status.