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

Each month, I shine the spotlight on a previous post that discusses an issue regarding Social Security disability law that remains highly relevant today.

Social Security classifies the physical exertion requirements of jobs as sedentary, light, medium, heavy and very heavy. 

The sedentary exertional level is an important landmark in the Social Security disability landscape. 

A disability claimant age 50 or over, who is unable to perform his or her past relevant work, who is limited to unskilled sedentary work will win at step 5 via the medical-vocational guidelines.

Please read previous post: Sedentary Exertional Level.

The hearing with a Social Security administrative law judge is critically important, because it is the only time that you are in the same room with the person deciding your claim for disability benefits.

The primary purpose of the hearing is to take your testimony. Many clients do not realize this, and have an expectation that the hearing is when their lawyer puts on the case. The client may assume that the lawyer will describe their functional limitations to the judge, backed up by the medical records and medical opinion evidence, and that the client is present mainly as an observer. That's not how it goes.

You will be testifying at your hearing. This means that you will be answering questions, from the judge and your lawyer. The judge wants to see you, hear you, and understand the basis of your claim for disability. And the judge wants to address any inconsistencies in your file. 

At the end of the hearing, the person applying for disability benefits will have done most of the talking. And that is the way it should be.

Just prior to a recent hearing for a Social Security disability claim, the administrative law judge told me his specific concerns about the case. I wish that would happen before every hearing.

In this particular claim, there was a disparity between the objective testing of the claimant's vision in the doctor's office and the real-life experience of the claimant, who is approaching blindness. Once this inconsistency was addressed to the satisfaction of the judge, the judge quickly granted the disability claim, noting the claimant's excellent work record prior to the onset of disability.

Addressing inconsistencies in the claim file is the most important aspect of a disability hearing.  Spotting inconsistencies requires a thorough review of the disability claim file and an experienced eye. A good knowledge of your client's personal story helps to address any inconsistencies you may find.

One problem is that often you do not know what the judge may view as an inconsistency. It is not always apparent, as it was in the case described above. So having the judge tell you in advance of the hearing is a significant help.

The Medical-Vocational Guidelines are used by Social Security to determine disability due to exertional impairments at step 5 of the sequential evaluation process.

The guidelines, or the "grids," consider a claimant's exertional level (that's the medical part) and the claimant's age, education and work history (the vocational factors). Depending upon these medical-vocational factors, the SSA determines that a person is either disabled or not disabled. The grids are potentially a factor in every Social Security disability case. When the grids to do not provide a definitive answer, vocational evidence is necessary.

I have added to this site a permanent page discussing the Medical-Vocational guidelines (the new page is listed on the sidebar, under Important Topics for Claimants). Please take a look!

For those with Workmen's Compensation (WC) benefits who are awarded Social Security disability insurance (SSDI) benefits, there is an offset for the SSDI benefits.

The applicable regulation is 20 C.F.R. 404.408. It states that if the total of WC and SSDI are more than 80% of your average current earnings (ACE), then the SSDI benefit will be capped at 80% of ACE.

Two things to bear in mind:

  • In case of lump sum WC settlements, Social Security looks at the lifetime value of the award, and prorates the lump sum based upon the claimant's life expectancy.
  • For lawyers, the attorney fee is paid after the offset. That means a person receiving ongoing WC benefits may have little or no retroactive Social Security disability benefits to support a fee.

For more on this topic, take a look at a good article by Eric Buchanan, Esq. regarding the worker's compensation offset.

Social Security uses a 5-step sequential evaluation process to evaluate disability claims.

The most important task for a disability lawyer is to formulate a complete and detailed theory of the case, which covers all five steps of the sequential evaluation. 

If you cannot articulate why each step of the sequential evaluation should lead to a finding of "disabled," you cannot fairly expect an administrative law judge to make a fully favorable decision.

Develop a winning theory for every claim. Make sure your theory of the case covers all five steps of the sequential evaluation. And develop the medical evidence and testimony to support your theory.

If possible, have 3 reasons that preclude past work and other work.

 

There is a good article by Nebraska disability law attorney Timothy J. Cuddigan in the September 2012 Social Security Forum, a newsletter for NOSSCR members.

Mr. Cuddigan suggests using a checklist for hearing preparation. Here is what he says:

Checklists help pilots prepare for a safe flight and surgeons avoid complications during an operation. Real estate closings have reams of documents and use checklists to make sure all details and contingencies are covered. Using a checklist to prepare for a disability hearing helps you:

  • Prepare in an organized and consistent way
  • Master the important facts in each case
  • Develop a theory of your case
  • Address the challenges and potential problems in your case
  • Prepare your client to testify
  • Identify the evidence you need to develop to win the case

Here is the Hearing Preparation Checklist provided by Mr. Cuddigan (link opens 3-page pdf).

A checklist is a good idea to ensure that all aspects of a claim are prepared. I am going to give a checklist a try, to see how it helps my case preparation.

The Medical-Vocational Guidelines are used by Social Security to determine disability due to exertional impairments at step 5 of the sequential evaluation process.

The guidelines, or the “grids,” consider a claimant’s exertional level (that’s the medical part) and the claimant’s age, education and work history (the vocational factors). Depending upon these medical-vocational factors, the SSA determines that a person is either disabled or not disabled.

The purpose of the guidelines is to allow the SSA to decide thousands and thousands of claims without resorting to individualized vocational evidence for each one.

In general, the grids are not where you want to be as a claimant, because the grids direct a finding of “not disabled” in most situations. In fact, every claimant loses under the grids until age 50 (or age 45 if unable to communicate in English). 

However, the grids are a two-edged sword. Once you reach the age of 50 (and have no transferable skills nor education that allows direct entry into skilled work), the grids direct a finding of “disabled” at the sedentary exertional level. The SSA presumes that the transition to unskilled sedentary work is too difficult for these claimants. At age 55, that same claimant grids “disabled” at the light exertional level.

Let’s look at an example to see how the grids operate.

Consider a worker was 53 years old as of his alleged onset date. He has a high school education and past relevant work as a painter, which is a medium exertional job.

Due to the claimant’s physical impairments, Social Security assessed a residual functional capacity (RFC) at the light exertional level. As a result, Social Security found that the claimant could no longer perform his past work at step 4 of the sequential evaluation process.

However, at step 5 Social Security used Rule 202.14 of Medical-Vocational Guidelines to determine that the claimant was not disabled. The claim was therefore denied.

Here is a plan to win a case like this with the help of the grids:

First, obtain a medical source statement from the claimant’s doctors to  get their assessment of his RFC. I use these medical opinions to try to persuade SSA that the claimant’s true RFC is at the sedentary exertional level. Since he is over age 50 and has no transferable skills, he would grid “disabled” at sedentary, and would then receive disability benefits.

Second, time is marching on, and the claimant’s 55th birthday is less than six months away. Social Security has a regulation stating that the age categories of the guidelines should not be applied “mechanically.” See 20 CFR 404.1563(b). The POMS has a provision that describes the factors to be considered when deciding the appropriate age category in borderline situations such as this. See POMS section DI 25015.005. I cite these authorities and explain that our claimant should be considered a person of “advanced age” right now. As a person of advanced age, he would grid “disabled” even at the light exertional level.

That is a simple example of how the grids operate. The example also demonstrates how a Social Security disability lawyer analyzes a case and develops a winning theory for the case. Developing a winning theory at the beginning of a case is perhaps a disability lawyer’s most important task, and it is the aspect of my disability law practice that I enjoy the most.

As I talk with prospective clients, they frequently start with the premise that they are disabled because they cannot perform their past work. That is a good start, but it is not enough to obtain Social Security disability benefits. You must also be unable to perform other work.

I have written about this topic recently, but a reminder is appropriate. Please take a look at these two recent posts:

If you do not have a theory of the case that precludes other work, then you have problems with your Social Security disability claim.

**********************************

Get help with your disability claim

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates.

 

I have had several claims granted recently at the initial level. These claims were determined quickly and favorably because (in my opinion) an attorney was involved very early in the claim process.

Fees tend to be much lower for these claims. A contingency fee is charged based upon the past due benefits, and the sooner the claim is granted, the lower the amount of past due benefits. In one of my recent claims, there were no past due benefits at all, since the claim was granted within the 5-month waiting period. I charge no fee at all to these clients.

If you are over 55, it is critically important to have an attorney involved at the beginning of the claim process, so that your vocational history is properly described. Remember, the SSA evaluates claims on a medical vocational basis, so your work history can be as important as your current medical condition. 

**********************************

Get help from a lawyer with your disability claim 

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates for a free consultation.