Welcome! This site is written for Social Security disability claimants, for their legal representatives, and for the network of people involved in the Social Security disability claim process. I hope you find it helpful.
Free Claim Review

Disability claimants over the age of 55 who are unable to perform their past relevant work and are limited to Light exertional work (or less) will be found disabled at step 5 in the absence of readily transferable skills (and in the absence of recent education providing direct entry to skilled work), by operation of the Medical-Vocational Guidelines, or “the Grids.”  See Grid rule 202.06.

As the regulations explain, “the limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled.” See Section 202.00(c) of the Medical-Vocational Guidelines.

Conversely, “The presence of acquired skills that are readily transferable to a significant range of semi-skilled or skilled work within an individual’s residual functional capacity would ordinarily warrant a finding of not disabled.” See Section 202.00 (e) of the Medical-Vocational Guidelines, and Grid rule 202.07.

Of course, Social Security does not define how many jobs (to which acquired job skills would transfer) are needed to constitute a “significant range” of semi-skilled or skilled work. The 9th Circuit has held that 2 jobs are insufficient to satisfy the “significant range” range requirement. See Maxwell v. Saul, 971 F.3d 1128 (9th Cir. 2020). Are three jobs enough? Four? More? We don’t know for sure.

But you can be pretty sure that the vocational expert testifying at your hearing doesn’t know either. So be sure to ask if acquired job skills would transfer to a significant range of skilled or semi-skilled work, as the regulations require. The VE may not want to be put on the spot to identify 4-5 jobs that the skills would transfer to, and will simply say no.

By the way, outside of the 9th Circuit (where Maxwell must be followed), Social Security’s position is that 2 jobs would be enough to meet the requirement for a significant range of work.

Cooking in a commercial kitchen is a demanding job. You are constantly on your feet, using your hands frequently, and lifting and carrying stuff around the kitchen. The Dictionary of Occupational Titles characterizes the job of “Cook” as a Medium exertional, skilled job. That means that if the person seeking benefits is no longer able to work as a cook and is limited to Light exertional work, disability should be awarded if the claimant is over the age of 55. Unless there are transferable skills.

I have had two claims recently with clients over the age of 55 whose past relevant work involved work as a cook. In both cases – before I was hired – the claims were denied upon initial review to claimants limited to Light work, based upon a finding of transferable skills (by the way, always review the Disability Determination Explanation to see exactly why the claim was denied)

DDS determined that the acquired job skills of a Cook could transfer to :

319.677-010 Caterer Helper SVP 3 Light
319.484-010 Food Assembler, Kitchen SVP 3 Light
313.374-014 Cook, Short Order SVP 3 Light
317.684-014 Pantry goods maker  SVP 4 Light

This is why I write about transferable skills! Here are 2 claims that would have been granted at Step 5 of the sequential evaluation via Medical-Vocational Guidline 202.06, but were denied under Medical-Vocational Guideline 202.07 due to the presence of transferable skills.

Of course, the skills have to transfer to jobs that are within a claimant’s RFC.

To prevail on these claims, I either have to establish that these claimants are limited to Sedentary work or otherwise unable physically to perform these jobs  (and therefore these jobs are not within the claimant’s physical RFC). Or alternatively, that the skills do not transfer due to a mental limitation to simple, not detailed tasks (and therefore these jobs are not within the claimant’s mental RFC).

SSA has released the “waterfall” chart for fiscal year 2021.

The chart show what percentage of disability claims were granted and denied nationwide at each level of review:

  • 36% were granted after an initial review of the application. That’s a bit more than 1 out of 3.
  • Just 13% of the claims appealed were granted at Reconsideration. So 7 out of 8 were denied a second time.
  • 51% were granted at the hearing level.
  • Of those unfavorable hearing decisions that were appealed, 85% were denied at the Appeals Council.
  • And for those claims that went to federal court, 59% were remanded.

The lesson is: appeal your disability claim if it is denied.

Social Security has begun sending out Form SSA-4547, Advance Designation of Representative Payee, to certain disability claimants. I got a call last week from a client who received the form in the mail, and inferred that her Title II disability claim must have been granted at Reconsideration. But no. Her claim is still pending at Reconsideration.

Only a small fraction of people receiving disability benefits need a Rep payee. Why would Social Security send out this form to someone with a pending claim? Why go to all the trouble, just in case that person’s claim is granted and they might need Rep payee? The new POMS Section on the issue doesn’t say.

Here is the Social Security’s Representative Payee information page, and a link to the information page on Advance Designation of Representative Payee.

Some of your clients may start getting these forms from SSA, and may think that their pending disability claims have been approved.

Almost all the hospital groups now have patient portals, which give patients online access to their medical records, test results, upcoming appointments, and more.

When developing a disability claim, I find that I am asking clients more and more frequently to provide me with the user name and password for their patient portal account. It may seem like an invasion of privacy, but I am already seeing their medical records, so it is no different. This just allows me instant access to them.

Access to the patient portal helps in several situations:

Sometimes you need a record fast. If you have a hearing coming up and the client had an recent medical visit or test, you can get it instantly, rather than ordering the record and hoping that it arrives in time. Similarly, at Reconsideration, you can submit a record quickly, to make sure it is considered during the medical review of the claim.

You can make sure the record is complete. Sometimes Social Security has ordered “all” records, but there are things missing. You can fill in the gaps via the patient portal.

Sometimes the claimant forgets to tell you about a relevant medical condition, or a visit to a specialist, or a test. The patient portal will tell you.

Consider asking you client’s about access to their patient portals.

Those seeking Social Security disability benefits often contact a lawyer after they receive a notice of disapproved claim in the mail. That denial letter offers some explanation of why the claim was disapproved, but it is often too vague to be much help to the lawyer developing the claim.

After an appeal of that initial denial, you are at Reconsideration. At that stage of the administrative process, the Representative does not have access to the entire electronic claim file. Rather, just section E –  Disability Related Development – and section F  – Medical Records – are viewable by the claimant’s representative (to see how an electronic claim folder is organized, click here).

Once a claim is at the Hearing level of review, the lawyer has access to the entire electronic file. Until then, there is no access through the electronic file to the A section of the file, which contains the Decisions for the claim, specifically the Disability Determination Explanation made at the initial level of review.

The Explanation is a keystone document in the file. It is the first thing I read when I review a file. It details the evidence, assesses an RFC, and specifies how the claim was decided by DDS. Was the claim denied at Step 4? Step 5? What was the RFC? The Explanation will tell you. It is the roadmap of how the claim was evaluated by DDS. It is invaluable information to have while developing a claim.

For claims at the Reconsideration level, I fax a request to the local field office (or the Workplace Support Unit with jurisdiction over the claim) for a copy of the Disability Determination Explanation. I usually get it in the mail in a week or two. It is too important a document not to have available at the Reconsideration level.

Lately Social Security has been sending initial disability claims filed online to a Workplace Support Unit (WSU), instead of the local field office. There are several of these WSUs around the country, set up to do overflow work. I have had initial claims filed online sent to various WSUs, including Boston, Tampa, and Birmingham.

Once assigned, the WSU has jurisdiction over these claims until they get to the hearing level, so all the things a local field office supports (such as processing your SSA-1696 and fee agreement, and associating you as Representative to the new disability claim file) need to be done by the WSU.

The field offices are set up to deal with inquiries. The WSUs, not so much.

Additionally, when an online  claim is filed, the WSU may get in touch with the claimant to confirm that they are the person who filed the claim. They refer to this as an attestation. Sometimes this is by phone, and the claimant has no idea where the person from Social Security Security is actually calling from. So getting in touch with the right WSU can be something of an adventure, and may involve a call to the local office just to see which WSU has jurisdiction for the claim.

Once you know which WSU has the claim, you can provide them your 1696 and fee agreement. My experience is that it takes time, and usually a couple phone calls, for them to associate you as Representative with the claim file for a new claim.

 

 

When a claimant is a “working supervisor,” such as a lead carpenter on a construction site, Social Security may have additional questions about that supervisory, managerial, clerical or administrative work:

  • What was the nature and extent of claimant’s supervision?
  • Did claimant actually do the work or just oversee?
  • If did the work, what percentage of the time?
  • Did claimant hire or fire employees?
  • Did the claimant complete employee evaluations?
  • Did claimant track employee work time or worked with payroll?
  • Did the claimant prepare work schedules?
  • What type of record keeping did the claimant do?
  • What specific reports did you prepare?
  • Did the claimant prepare and maintain files of reports?
  • Did the claimant order merchandise, equipment and supplies?

I came across this list of questions (and my client’s answers to them) recently in a claim file at the Reconsideration level.

These  questions explore whether the claimant has acquired job skills that would transfer to jobs that are less demanding physically. Be careful when you get into this area! If SSA determines that the claimant has transferable skills to a range of jobs within their RFC, the claim will be denied at step 5 of the sequential evaluation.

Transferable skills are getting attention across the board in Social Security disability claims. I am particularly seeing transferable skills analyzed more frequently in DDS determinations.

At the DDS level, transferable skills are assessed with reference to POMS DI 25015.017

The POMS treatment of transferable skills is a great starting point for your review. If the concept of transferable skills is new to you, or you need a refresher, read the POMS section on transferable skills first. At the hearing level, see Social Security Ruling 82-41.

Continue Reading Transferable Skills