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At Step 4 of Social Security’s sequential evaluation, the SSA considers the claimant’s ability to perform their past relevant work, both as actually performed and as generally performed in the national economy. That means that Social Security will evaluate your ability to do the jobs you have had over the past 15 years, both as described in your work history report and as generally performed.

If the job you had as a cashier was more demanding physically than that job is generally, and you could perform the job as generally performed, you will not be awarded disability benefits. On the face of it, this is a fair rule. But in practice, problems arise.

The first problem is that, to determine how a particular job is generally performed, Social Security refers to the Dictionary of Occupational Titles (DOT), a Department of Labor publication that hasn’t been updated since 1991 (and many jobs in the DOT date back to the 1970’s). So the description of a job’s requirements may be woefully outdated. I had this issue at a hearing recently, where an office-type job description in the DOT dated back to before there were PCs in the office, and before the internet. The job today is all about working on a computer and keyboarding, in a way the job wasn’t performed 30+ years ago. It took a lot of cajoling to get the vocational expert at the hearing to acknowledge that the job had evolved over time from its DOT description, and now required extensive use of the hands (which was a problem for my 63-year old client with severe psoriatic arthritis).

The disparity between the reality in the workplace and the dated job desciptions in DOT continues to grow with time. The issue has started to garner some media attention because of its unfairness. Claims are being denied using outdated vocational information.

Another problem is that a disability examiner at DDS may select a job title in the Dictionary of Occupational TItles that has the same name as the job performed by the claimant, but is a actually a different job.

Continue Reading Past Relevant Work as Generally Performed

I frequently talk with prospective clients who are thinking about applying for Social Security disability but are still working (and earning more than the 2023 SGA amount of $1,470 per month, gross pay).

These prospective clients sometimes want to discuss the likelihood of success for a disability claim, should they stop working and apply for benefits, and whether their particular medical condition can provide a basis for an award of disability benefits. I typically explain that it is not the diagnosis, but rather the severity of the symptoms from the diagnosed condition that will likely determine the success of a disability claim.

Once SGA work ends, you can apply for the disability benefits for which you have paid a premium through your FICA taxes over the years. But until that work ends (or falls below the level of substantial gainful activity), you are not eligible for Social Security disability benefits.

NOSSCR has developed what it calls a “Hearing Format Election Statement,” which is an excellent one-page, fillable form that contains all four types of hearing modalities (in-person, VTC, telephone, and online video) and allows for a simple way to notify the hearing office of how the claimant wants to appear at their hearing.

Using NOSSCR’s form, this information can be communicated to the hearing office on a single, straightforward form, which cannot be accomplished using SSA’s forms (the HA-55 and the COVID-19 Remote Hearing Agreement Form).

I have already started to use this form. You should too.

The “waterfall” chart shows what percentage of disability claims were allowed and denied nationwide at each level of review. Social Security publishes this chart each year.

  • 38% were allowed after an initial review of the application. That’s a bit more than last year.
  • Just 15% of the claims appealed were allowed at Reconsideration. So 5 out of 6 were denied a second time.
  • 51% were granted at the hearing level. This percentage is unchanged since last year.
  • Of those unfavorable hearing decisions that were appealed, 84% were denied review by the Appeals Council, 12% were remanded, and 1% were allowed.
  • And for those claims that went to federal court, 58% were remanded back to the Social Security Administration.

I had a hearing for a client who has been unable to work due to the symptoms of long-haul COVID, sometimes also referred to a postviral fatigue syndrome (PVFS).

My main challenge as a Representative has been to make sure Social Security recognizes that long-haul COVID cases are not like other cases. An appropriate RFC for a long-haul COVID case is an RFC for complete inability to do sustained work-related activity (see POMS section DI 24510.057B.2.b). See also EM 21032 REV . If you have a client with long-haul COVID, that Emergency Message and the POMS are good starting places when putting a case together.

At the DDS level, I have not had success getting disability examiners to grant claims on this basis. COVID is just too new to overcome the bureaucratic inertia. This was my first ALJ hearing for a long COVID case.

The judge was great. All the evidence was there, and the judge will grant the claim. Because my client may hopefully get better with time, the judge will recommend a short time frame for a continuing disability review, which is entirely appropriate.

I think the long-COVID claims will remain challenging at the DDS level. But my hearing today gave me renewed hope that well supported claims will be granted at hearing.

There is a great explainer in the Washington Post called Spoon theory: What it is and how I use it to manage chronic illness. The article, written by journalist Fortesa Latifi and illustrated by Lara Antal, has terrific graphic novel-style illustrations, including the one shown above. It conveys how those suffering with chronic illnesses (for example, long-haul COVID, chronic pain syndrome, fibromyalgia, CFS) have limited daily energy available for daily life, and the amount of energy available often varies from day to day.

Here is a short excerpt:

In the chronic illness and disability world, there’s something called “spoon theory.” Writer Christine Miserandino started it while explaining to a friend what chronic illness feels like, and grabbed a handful of spoons to make her point.

In the theory, each spoon represents a finite unit of energy. Healthy people may have an unlimited supply of spoons, but people with chronic illnesses have to ration them just to get through the day.

Spoon theory has become a shorthand for chronically ill people to explain how they’re feeling and coping day-to-day. And for me, it’s become a simple way to share with the able-bodied people in my life what I have the capacity for.

The article is a must-read, and the illustrations really encapsulate the issue of limited available daily energy. The “spoon” theory is a cogent way to explain to family and friends what it is like to live with a chronic illness. It is often exhausting.

As a Social Security disability lawyer, I frequently need to explain this issue to administrative law judges and to disability examiners. It is an uphill battle. Social Security’s disability process tends to focus on “nuts and bolts” issues, like how much can you lift and carry and how long can you sit and/or stand. The fact that on many days you just don’t have the energy to complete a normal workday is not really part of the framework.

Of course there is often discussion at hearings of “good” days and “bad” days, but this is a work-around. The basic architecture of Social Security’s disability process is not designed to adjudicate such claims. Going forward, I am wondering how the new long-haul COVID cases get handled. These cases often should be evaluated in terms of “an RFC for complete inability to do sustained work-related activity.” See EM-21032 REV section 7. Those claimants simply don’t have enough spoons in a day.

As dedicated readers know, at Step 5 of the disability sequential evaluation, Social Security uses the Medical-Vocational Guidliness to determine disability. The guidelines, or “grids,” direct a finding of “disabled” or “not disabled” based upon a person’s age, physical RFC, education and past work/transferable skills.

If the medical-vocational guidlines direct a result of “disabled,” you win the case, regardless of what outdated jobs a vocational witness might name at a hearing. When briefing a claim for a judge, or communicating with a DDS disability examiner, you want to specify the vocational rule that applies for that claim.

I know what each rule will direct for a result, but often need to double-check the rule number. For example, I am briefing a claim for a 52-year old claimant limited to Sedentary work. Her past work was semi-skilled, but the mental RFC limits the claimant to simple tasks, which precludes the transfer of acquired job skills. The applicable rule is 201.14, which directs a finding of “disabled.”

The quickest way to quickly check the rule and the correct rule number is with the website gridrules.net. The website exists thanks to Georgia Social Security disability attorney Jonathan Ginsburg. For those who practice in this area, you should have the site bookmarked, as I do.

The Washington Post has an excellent article this week by reporter Lisa Rein, entitled “Social Security denies disability benefits based on list with jobs from 1977.” You should read the article in its entirety.

The Dictionary of Occupational Titles (DOT), published by the U.S. Department of Labor, is used by Social Security as the basis for the “vocational” data used when making a Medical-Vocational determination at Steps 4 and 5 of the disability sequential evaluation.

Social Security takes administrative notice of “reliable job information available from various governmental and other publications,” including the Dictionary of Occupational Titles. See 20 C.F.R. 404.1566(d).

As the article explains, the DOT has not been updated since 1991, and some of the jobs listed in it date back to 1977. Most of the jobs listed are obselete, and the remaining ones have changed markedly since 1991. It is fundamentally unfair to deny a claim for disability benefits based upon jobs data that is over 30 years out of date. But it happens every day.

Of course, this is not news to those of us who specialize in this area of practice. I have had to explain to clients many times why claims were denied based upon jobs that no longer exist. It is intensely frustrating, particularly for the clients.

It is good to see this injustice exposed to the broader public by the national press. But we are years away from any change to this system, unless U.S. Circuit Courts beyond the 7th Circuit, which has been a leader in this area, finally bring an end to the practice.