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Social Security assesses your ability to perform your past relevant work at step 4 of the sequential evaluation process.

Social Security will evaluate your ability to do the physical and mental activities that were required to perform your past work. The SSA will not consider whether or not you could actually get a job doing this work.

Additionally, when evaluating your ability to perform your past relevant work, the SSA does not consider:

  • whether you would be hired,
  • whether a job opening exists,
  • whether you would be required to relocate,
  • whether you want to do this work,
  • whether you still have a certificate or license to do the past work.

The last item on the list is one I hear about frequently from clients who are pilots, truck drivers, or commercial bus drivers – people who often require an examination from a physician to maintain a license. The fact that you could not pass the physical to get licensed would not be considered by Social Security.

Rather, the SSA will simply evaluate whether or not your could perform the work activities of that past job. Now, it may be that the medical condition that would keep you from getting licensed would also prevent you from performing the job. But not always.

A Social Security disability claimant should emphasize the functional limitations that would preclude past relevant work, and skip the argument about not being able to be licensed, and therefore unable to work.

Each year, the Social Security Administration releases statistics about the disability and SSI programs in an easy-to-understand format, the "waterfall" chart. The chart shows the percentage of claims approved and denied at the various levels of review.

Here is the latest chart, for FY 2014:

The chart shows what claimants can expect, statistically, for their claim for Social Security disability benefits. I like this chart, and have posted the waterfall chart each year on this blog since 2010.

However, much has changed since then (see my post from 2010). Allowance rates are down at every level of review, with Reconsideration staying steady at 11% of claims. ALJ allowance rates have fallen significantly each year (62% in FY 2010, 58% in 2011, 53% in 2012, 48% in 2013, and now 45% for 2014).

Those of us practicing Social Security disability law are well aware of the changes in the past 5 years. But the chart shows the situation clearly, for all to see.

Sometimes a prior job is actually more than one job at the same time. You were both a nurse supervisor and performed the duties of an RN. You were both a carpenter and a construction supervisor. These are called composite jobs. 

In every disability claim, the SSA must determine (at step 4 of the 5-step sequential evaluation process) whether you have the residual functional capacity to perform your past relevant work. This is where the composite job can cause problems with a claim.

I just had a hearing where this issue came up. The work history report listed past relevant work at a homeless shelter as a social services aide, a light exertional job beyond the claimant’s residual functional capacity. At the hearing, the VE had questions about this job, and found that for half of the time (or more) the claimant was simply working in the shelter’s office, doing routine office work. As a result, the VE used two classifications to characterize this job: social services aide and general office clerk. 

When the judge gave a hypothetical question to the VE about the claimant’s ability to perform her past relevant work, the VE testified that all of the claimant’s past relevant work would be precluded by the hypothetical, except for the past work as a general office clerk.

I pointed out to the judge that the general office duties were part of a composite job, and not a stand-alone job. All of the duties of that composite job must be considered at step 4, including the more strenuous parts that were not part of the general office clerk duties. The judge asked for authority for my argument, which I provided with a post-hearing brief.

Social Security Ruling 82-61 states “composite jobs have significant elements of two or more occupations and, as such, have no counterpart in the DOT. Such situations will be evaluated according to the particular facts of each individual case.” Social Security must consider all the exertional and nonexertional requirements of a composite job.

There is some good case law on this issue from the Ninth Circuit:

Every occupation consists of a myriad of tasks, each involving different degrees of physical exertion. To classify an applicant’s “past relevant work” according to the least demanding function of the claimant’s past occupations is contrary to the letter and spirit of the Social Security Act. Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985).

See also Carmickle v. Commissioner, 533 F.3d 1155, 1166 (9th Cir. 2008).

This issue can make the difference between losing a case at step 4 or not. It probably only makes a pivotal difference 1 time in 50 or 100 claims. But as a disability lawyer, you have to know this. Awareness of the composite job issue can make the difference between a client receiving disability benefits and having those benefits denied.

The new chief administrative law judge of the Portland, Maine Social Security hearing office is Judge Linda J. Helm. Judge Helm transferred to Portland from her previous post at the hearing office in Mobile, Alabama. We welcome her.

Judge Helm was conducting hearings today, and I already have a hearing scheduled with this new judge.

Judge Helm replaces Judge Guy Fletcher, who transferred to the Phoenix, Arizona ODAR. The weather app on my mobile phone says that the temperature today in Phoenix was 70 degrees, which is 70 degrees warmer than the temperature this morning at my office in Saco, Maine.

The Social Security will expand its hours nationwide effective March 16, 2015. Local "field" offices will be open to the public for an additional hour on Mondays, Tuesdays, Thursdays and Fridays; they will be open from 9:00 a.m. until 4:00 p.m on those days.  Offices will continue to close to the public at noon every Wednesday so employees have time to complete current work and reduce backlogs.

Staying open to the public another hour is a step in the right direction. However, I do not think the public expects a government office to be closed at noon on a Wednesday. My office is just down the hall from the Saco, Maine Social Security office, and I often hear people knocking on the door of the closed office on Wednesday afternoons.

The field offices have significant backlogs. Hopefully, Congress and the Administration will provide the resources the field office need to stay current on their workload. 

Working on initial disability claims, from the application itself through the DDS review process, is one of the most enjoyable parts of my job as a Social Security disability lawyer.

Most of my practice involves preparing disability claims for hearings before administrative law judges, but a certain percentage of my cases are initial claims or claims at the Reconsideration level.

Often we can gather the evidence necessary to get disability benefits paid after the initial review, without having to go through an appeal process. This saves a great deal of time and worry for the client, and often results in a lower fee paid to the lawyer as well.

Some claims are not going to be granted upon initial application. Often more medical evidence is needed. But some claims already have a significant medical record. If it is possible to obtain medical source statements from the treating doctor(s), these cases can be ready to go on a fast track.

As a lawyer, I enjoy initial claims for several reasons. First, I work closely with the local Social Security office and the disability examiner, which is a change of pace from those disability claims that are already at the hearing level. Second, there is no greater result for a client than getting a claim granted right away. I like doing the work to make that happen.

One group of disability claimants that benefits greatly from the involvement of a lawyer at the application stage is those age 55 and over. The lawyer can plays an outsized role in these claims, because much of the disability determination rests on the past relevant work of the claimant. Making sure that the vocational evidence for these claims is properly presented is very important.

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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.

 

Multiple Myeloma is a blood cancer that used to be a terminal diagnosis. However in the past 10 years or so, truly amazing advancements have been made in the treatment of this disease. There are new drugs, like Revlimid and Valcade, and autologous stem cell transplants are a treatment option that offers lengthy remissions. I am happy to say that for many patients, multiple myeloma has become more of a chronic condition than a terminal cancer.

I never used to have clients with multiple myeloma, because disability applications based upon the disease were routinely granted. However, the advances in treatment have made it more difficult to obtain Social Security disability.

Mulitiple myeloma is evaluated under Social Security listing 13.07. However, the listing is not that much help for those who respond to treatment. Most cases will be evaluated on a medical-vocational basis. That means claims will be decided by evaluating your residual functional capacity and determining your ability to work (see steps 4 & 5 of the sequential evaluation process).

When evaluating a disability claimant's ability to work, my experience is that Social Security does not give sufficient consideration to the side effects of the chemotherapy that these patients receive. The chemo has severe side effects that can last for months or years after the chemo stops. Fatigue is typically the greatest side effect, and cognitive issues can be secondary to that fatigue. Peripheral neuropathy, particularly in the feet, is also a common side effect of the chemo. Lastly, an impaired immune system is a byproduct of the chemo, and that can preclude some types of employment.

A person under medical management for multiple myeloma is going to able to function, and some days are better than others. But it is unlikely that this person will be able to sustain employment on a "regular and continuous basis," as required by Social Security ruling 96-8p, due to the fatigue alone.

To prevail with your claim for Social Security disability benefits, you must make the SSA understand the functional limitations you experience. A lawyer who understands the limitations that come with chemotherapy can be a real help for those with multiple myeloma.

The patient is doing well.

I wish I had a nickel for every time I read that sentence in a progress note for a patient who is applying for disability benefits.

This statement (and similar language) in a patient’s medical records can cause problems in a disability claim, because it is routinely misinterpreted by those making disability determinations (whether or not it is wilfully misinterpreted is a separate issue). 

Saying the patient is doing well is relative. A patient who is no longer suicidal may be doing “well.” A patient who is no longer bedridden half the time due to chronic pain may be doing “well.” But neither patient may be able to work, let alone maintain competitive employment on a regular and continuous basis, as required by Social Security ruling 96-8p.

As a disability lawyer, you have to show the context for statements like this in medical records, each and every time. Same for statements like “patient is improving,” or “doing better.” Otherwise, you run the risk of an unfriendly ALJ latching on to those statements in the medical records to support an unfavorable decision.

Unfavorable decisions routinely cite such statements as evidence that the disability claimant’s functional limitations are not as severe as alleged. You have to make it as difficult as possible for an ALJ to do that, by providing context for these statements. 

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Most disability claims are decided on a medical-vocational basis. Sometimes too little attention is paid to the vocational part of the analysis.

I had a Social Security disability hearing recently where the administrative law judge gave the DDS residual functional capacity assessment as a hypothetical question to the vocational expert (VE) at the hearing. The VE answered that past work was precluded, and that other work would also be precluded by the functional limitations assessed by DDS. Game over. Claim granted.

Sometimes the problem with the disability determination made by DDS when evaluating a claim for disability benefits is not so much the functional limitations resulting from the claimant's medically determinable impairments, but rather than vocational consequences of those limitations.

Vocational evidence is particularly important for claimants who are 55 years or older. Those claims often focus on whether or not the claimant's past work can still be performed (and therefore, the nature of the past work is a central issue), and whether or not the claimant acquired transferable job skills.

It is not unusual to be preoccupied in the medical aspects of a case. But don't forget the vocational evidence, because you can win the case that way as well.

Binder & Binder, a nation-wide firm of advocates for those seeking Social Security disability or Supplemental Security Income benefits, is roughly $40 million in debt and is preparing declare bankruptcy under Chapter 11, according to the Wall Street Journal

For those of us who represent clients before the Social Security Administration, this is quite a milestone.

Three years of sharply lower allowance rates have taken their toll. Additionally, backlogs at the hearing offices have increased significantly over the past year, so fewer cases are getting scheduled for hearings. Fewer hearings and lower allowance rates is a nasty combination. Add high overhead and high advertising costs, and you have a recipe for bankruptcy. Here is attorney Charles Hall's take on the Binder situation.

I won't miss Binder. I have heard too many stories from its former clients about the level of representation received. In my opinion, disability claimants are better served by local attorneys who develop a relationship with their clients, have a working relationship with the administrative law judges in their area, and work frequently with the staff at local Social Security offices.

Nevertheless, Binder's apparent collapse is the latest evidence the grim new reality in the world of representing clients before the Social Security Administration. It is a tough time to be representing those claiming Social Security disability benefits. All of us have had to make adjustments in our practice.

For those of you applying for disability benefits, you cannot simply trust the system to do the right thing anymore. Good representation is more important than ever.

12/19/2014 Update: The bankruptcy has been filed. During its Chapter 11 reorganization, Binder projects it will reduce its staff by 60% or so over the next 2 years. 

1/02/2015 Update: More Binder & Binder updates, courtesy of Charles Hall. Apparently Binder has stopped ordering medical records for its clients, which if true, is outrageous. And not surprisingly, a lot of Binder employees will be losing their jobs.