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Social Security has published a proposed rule that shortens the lookback period for past relevant work (PRW) from the current 15 years to a 5 year period. The proposed rule would recognize that claimants often do not remember the details of a job held 15 years ago. Further, that past job has limited relevance to a claimant’s ability currently to perform that work, because the workplace has changed significantly.  Similarly, job skills acquired 15 years ago are unlikely to be readily transferable to a significant range of semi-skilled or skilled jobs in the current workplace.

The comment period for the rule closes in a week, on November 28th (which is 60 days after the date the proposed rule was published). It has been interesting reading the public comments to the proposed rule. Of the 50+ comments made to date, there are a few stray comments that oppose the proposed rule. The overwhelming majority of the comments, including mine, are strongly supportive of the rule change.

One comment in particular caught my eye. Submitted by Social Security disability lawyer Andrew Kinney, the comment suggests that the new 5-year rule should from the date of adjudication ONLY, and not from the date last insured (DLI), if the DLI is earlier. It is a very good point.

The current rule looks back 15 years from the date of adjudication, or from the date “when the disability insured status requirement was last met, if earlier”. See 20 C.F.R. 404.1565(a).

However, using only the date of adjucation for the PRW period would make sense, for all the reasons underlying the proposed rule change. As Mr. Kinney stated at the end of his comment, “Relying solely on the date of adjudication to calculate PRW in all cases would eliminate the issues you cite surrounding memory and erosion of skills that arise when evaluating PRW in remote DLI situations.” Mr. Kinney is right. Social Security should use the date of adjudication only to define the new 5-year PRW period.

11/27/2023 Update: NOSSCR has submitted its comment, providing reasoned arguments in support of the proposed rule, and urging the SSA to swiftly enact it.

11/29/2023 Update: The comment period has ended. A total of 89 comments were received.

Today Social Security gave notice of Ruling 23-1p, “Titles II and XVI: Duration Requirement for Disability.”

The new Ruling rescinds and replaces SSR 82–52: Titles II and XVI: Duration of the Impairment.

Charles Hall made the following comment in his blog post about the new Ruling:

One thing I really don’t like about this is that it perpetuates the existing problem with situations where you need to combine two impairments to make up the one year duration requirement. As an example, a claimant is in chemotherapy for lung cancer and having a hard time of it for eight months. Before the chemo ends, the claimant is in an automobile accident and suffers a bad femur fracture that takes six months to heal. The claimant is out of work for more than a year due to the health problems but Social Security has examined the definition of disability with a microscope to find some tortured argument for denying such claims. Each disability must itself last at least a year. This only comes up rarely and usually when it does the decision makers involved are unaware of agency policy. Still, it’s unnecessary and cruel.

I totally agree.

NOSSCR developed a “Hearing Format Election Statement,” which is an excellent one-page, fillable form that contains all four types of hearing modalities (in-person, VTC from the hearing office, 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. It avoids using SSA’s forms (the HA-55 and the COVID-19 Remote Hearing Agreement Form), which claimant’s often find confusing.

I wrote about this form back in March, but it is worth mentioning again. I use this form regularly to respond to the hearing acknowledgement letter and the remote hearing options letter, which are sent routinely by the hearing office after a hearing request is processed.

11/07/2023 update: Social Security has (finally) added the document type “Objection to Video Hearing” to the dropdown list on the Electronic Records Express (ERE). It can be found at the bottom of the dropdown list. You can now upload the hearing format form electronically and it will be placed in the B section of the electronic folder.

Social security has published a proposed rule which would reduce the period for past relevant work (PRW) from 15 to 5 years. The proposal is the result of a great deal of research by Social Security, and it presents a practical improvement to the disability adjudication process.

The proposed rule is currently in the comment period. Below is the comment I submitted to the Social Security Administration.

As a claimant’s representative, I support the proposed rule.

Limiting PRW to 5 years would help to streamline the disability adjudication process. A great deal of time and effort is spent cataloguing and evaluating jobs going back 15 years. It would save significant time and effort by claimants, representatives, disability examiners, judges and staff.

The proposed rule recognizes that a job held 10-15 years ago has limited relevance to a claimant’s ability currently to perform that past work, because the workplace has changed significantly. This is particularly true of technology jobs (as some commenters have noted), which constantly require new knowledge and skills as software and systems evolve. But it is also true of general office work, which now relies heavily on technology (computers, software, scanners) in a way that office work did not even 10 years ago.

Likewise, job skills acquired 10-15 years ago are unlikely to be readily transferable to a significant range of semi-skilled or skilled jobs in the current workplace.

The proposed rule could be implemented quickly, so that the rule is effective as soon as possible. While a great deal of thought and preparation have gone into the proposed rule, it would only require a simple change to the regulations. Please finalize and implement the rule with all deliberate speed.

The comment period for the proposed rule is open until November 28, 2023. Let’s hope that SSA adopts the proposed rule early in 2024.

One of the quirky things about disability claims at the initial and reconsideration levels is that Social Security does not send you a letter when you are awarded disability benefits. A denial letter is quickly sent if a claim is denied, but not so with claims that are allowed. A letter is sent when the allowance is only partially favorable, and an onset date later than the one alleged was used. Eventually, a “notice of award” letter is sent for all allowed claims, but usually not until the past-due benefits have been paid.

Since Social Security does not promptly notify successful disability claimants, I am happy to do it. I monitor all my claims at DDS, so I usually know pretty quickly when a determination has been made. Usually I just pick up the phone to give my client the good news. But sometimes the client is away from the phone. Rather than leave a voicemail, I send a quick email that answers the most commonly-asked questions. Here is one I sent today:

Hi Jane,

Social Security has granted your claim for disability benefits at Reconsideration.

Your claim was allowed as of your alleged onset date, 2/25/2022.

Social Security does not pay benefits for the first 5 full calendar months of disability, so your eligibility date (when benefits start) is August 1, 2022. You will be eligible for Medicare insurance 24 months after that, or August 1, 2024.

Your current monthly benefit will be around $1,370 a month.

Currently the claim is being processed in the local field office. They already have your direct deposit information. They will transmit your claim to a payment center, where your benefits will be calculated and paid.

Let me know when the money lands in your account (with luck, perhaps by the end of the month).

You will receive, fairly soon, a “Notice of Award” letter explaining how your benefits were calculated, and specifying the amount of my fee, which they will pay directly to me.

Obviously, this is great news! I am so pleased we were able to obtain benefits at this stage, without having to wait for a hearing. The opinion from your doctor definitely helped.

I am available if you have any questions,

Gordon

It is my favorite e-mail to write.

New evidence for Social Security claims must be submitted 5 business days ahead of the hearing. See 20 CFR 404.935(a) and HALLEX I-2-5-13. With a typical weekend, that’s 7 days ahead of the hearing. Holidays, which are of course not business days, must be accounted for as well. So beware the 3-day holiday weekend, like the upcoming Columbus Day weekend coming up on October 9th this year.

Columbus Day is now celebrated as Indigenous Peoples’ Day in Maine and a dozen or so other states. If you have a hearing during the week of October 9th, you must take the holiday into account when calculating filing deadlines.

New evidence includes updated medical evidence and the Representative’s brief. Everything must be filed 5 business days ahead to be timely for the hearing. While filing earlier is always best, be aware of the deadline.

Social Security published today a proposed rule change to “revise the definition of past relevant work (PRW) by reducing the relevant work period from 15 to 5 years.” Here is a link to the proposed rule.

This would be a significant (and welcome) change to the disability evaluation process. It would be a commonsense change to the rules, and would help many claimants who risk being denied disability benefits (unfairly, in my view) based upon work they did 15 years ago.

For context, Step 4 of the disability sequential evaluation considers a person’s ability to perform their past relevant work, both as actually performed and as generally performed in the national economy. At Step 5, Social Security considers whether a person has acquired job skills from past relevant work that would transfer to a significant range of other jobs. The proposed rule narrows the jobs included in PRW to just the past 5 years. In the world of Social Security disability, that is a huge change.

There are many reasons supporting the change. The first is fairness. Second, it simplifies the process; a claimant doesn’t have to remember and describe in detail 15 years of past work, and Social Security does not need to evaluate 15 years of past work. Third, it recognizes that life moves pretty fast, and job skills acquired 15 years ago are unlikely to be relevant today.

I have clients who need to use a cane when walking or standing. Often the cane is for balance, but sometimes also due to weakness in the legs. Social Security has policy on the vocational impact of the need to use a cane or other handlheld assistive devices (such as a walker).

Social Security Ruling 96-9p discusses the use of a medically-required handheld assistive device when considering a claimant’s ability to transition to other work (step 5 of the sequential evaluation). The Ruling states in part:

To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information).

The ruling states that the vocational impact use of the cane depends upon the facts of the case. It may not have that much of an effect on Sedentary work, but at the Light exertional level, which requires more standing and walking, a cane has a much larger impact, in my view. If you are using a cane with one hand, you only have one hand available to lift and to carry. Depending on the job, the need for a cane can really impact a person’s ability to complete required work tasks.

Don’t wait for the hearing to argue about this issue. You may need to develop medical evidence that the cane is medically necessary, and under what circumstances it is needed.

I attended a seminar session last year in Austin, Texas on the topic of helping those applying for Social Security disability benefits with their initial applications. The lawyer making the presentation said that, like a rancher, a lawyer should “make money on the herd, not on the cattle.” Translation: Don’t look at the potential return for each individual case, but consider you caseload overall. And he is correct.

Sometimes lawyers shy away from helping with initial applications because the person applying for benefits has not been out of work for long, and no disability benefits are paid for the first 5 full months of disability. Since a Representative’s contingency fee is based upon the claimant’s past-due benefits, that often means no fee or a very small fee. Likewise, disability claimants that have just received an initial denial often do not have even a year of past due benefits, given the 5-month waiting period.

I have won claims at Reconsideration at an strong pace this year, by actively managing the claims at the Reconsideration level and writing a short brief for disability examiners. Because these claims get granted so quickly without the need to wait for a hearing, the fees are usually quite low. But so what? You have a happy client, you did not have to prepare for, travel to, and attend a hearing, and the low fees add up over the course of the year. And it is always nice to win your case.

That lawyer in Austin was right. Focus on the herd, not the individual cattle.

An adult disabled before age 22 may be eligible for child’s benefits if a parent is deceased, or receives Social Security retirement or disability benefits. The SSA considers this a “child’s” benefit because it is paid on a parent’s Social Security earnings record. Here is the disability page on the SSA website (scroll down to the section entitled “Adults with a Disability that Began Before Age 22”).

The DAC benefit is almost always higher than the disability benefit based upon the claimant’s own limited work record, and the DAC benefit is more favorable than SSI. The monthly benefit is likely to be higher, and disability comes with Medicare insurance coverage. Further, disability recipients are not penalized if they are able to earn a little money each month to supplement their disability check (keep it under SGA), unlike SSI recipients. 

To qualify, the “adult child” must be:

  • unmarried,
  • age 18 or older, and
  • have a disability that started before age 22.

The parent must be disabled, retired, or deceased.

The SSA makes the disability determination using the usual adult disability process.

Sometimes a change in status of a parent makes the child eligible. Suppose a son has been on SSI since age 20, and is now 25. The parent retires or dies. Now the son is eligible for DAC benefits.

Alternatively, a child on childhood SSI, who ages out from that program after age 18, may be eligible for DAC rather than adult SSI, if there is a parent with a work record who is disabled, retired, or deceased.