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:

• You must be unable to do "other work" for disability
• You are not disabled for these reasons

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

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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.

Every other Friday, I highlight recent articles of note regarding Social Security disability:

• Privatizing Social Security is ‘worst idea ever imagined’ by Donald Johnson
• Aging, not abuse of system, accounts for increased use [of the Social Security disability program] by Jeffrey Freedman
• What Questions Does The Judge Ask At The Social Security Hearing? by Declan Gourley
• Does The Social Security Administration Consider How Much Pain I Experience? by Scott Lewis
• Cincinnati Social Security Disability Attorney Offers Critical Evidence Questionnare for Your Doctor (video) by Anthony Castelli
• Winning a Degenerative Disc Disease Case by Vaughn Clauson
• Senator Coburn Finds The Gold Standard For Determining Disability by Charles Hall

The Fall weather has definitely arrived in Maine and New Hampshire. For one look back at Summer, here is a picture of my daughter Bridget in her swimsuit and ribbon.

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