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The Social Security Administration has special rules for claimants age 55 and over. If you can no longer perform your past relevant work, then Social Security must take your age into account when considering whether or not you can do other work at step 5 of the sequential evaluation. This principle is embodied in the Medical-Vocational Guidelines, which are used by the SSA to determine disability at step 5.

I think it is very helpful for claimants age 55 or older to have a disability lawyer's help with their initial disability application, because there are some common mistakes to avoid. I have worked with many clients in this age group, and often a claim can be granted without the necessity of a hearing if the initial application is completed properly.

I ensure that I have a winning theory of the case before filing. Then, I help the client thoroughly complete the work history report, being sure to fully describe the requirements of past work. I analyze the past work for transferable skills, which can sink a disability claim. Then, I describe the claimant's functional limitations, and ensure that all sources of medical treatment are listed, so that Social Security gets a complete medical record. Lastly, I ask the client which of his or her doctors are most supportive, so that I can get a doctor's opinion.

For the lawyer, this process means front-loading the time spent on a disability claim. The hours of getting to know a client, the medical history and work history, are all spent before even applying for benefits. For the client, getting help with the disability application means that common mistakes are avoided, all the necessary details are included, and the application is supported by a winning theory of the case.

If you are age 55 or older and can no longer do the kind of work you've done in the past, consider getting a Social Security disability lawyer involved as early as possible. There is no up front cost, and no fee at all unless your claim is successful. 

Many people applying for Social Security disability are age 55 or older, and have worked hard for their entire adult life. But now, due to a medical condition, they cannot do their job any longer. Many of these workers are denied benefits when they apply for disability, despite a lifetime of paying into the Social Security system.

The Social Security Administration has special rules for claimants age 55 and over. If you can no longer do the sort of work you have done in the past, then Social Security must take your age into account when considering whether or not you can do other work. These rules are embodied in the Medical-Vocational Guidelines, which are used by the SSA to determine disability at step 5 of the sequential evaluation.

If you are 55 or older and are limited to unskilled light exertional work, Social Security will presume that you are unable to transition to other work due to your age. An experienced attorney can use these presumptions to help win your disability case.

It is very important to remember that you do not get the benefit of these rules until step 5 of the disability evaluation process. So it is critical to rule out your past relevant work at step 4.

Your past relevant work comprises all of the jobs that you have had during the past 15 years. If you still retain the residual functional capacity to perform any of these jobs, your disability claim will be denied at step 4. If Social Security determines that you can perform your past relevant work, your claim will never get to step 5, where you would have benefitted from the favorable presumptions due to your age. For this reason, it is particularly important for disability claimants 55 and older to have the assistance of a capable Social Security attorney. 

I prefer to be involved as early as possible with a disability claim of a worker over age 55. Ideally, I am consulted before the claim is filed. In many cases, my help with the initial application pays off with a fully favorable decision, without the necessity of a hearing.

I ensure that I have a winning theory of the case before filing. Then, I help the client thoroughly complete the work history report, being sure to fully describe the requirements of past work. I analyze the past work for transferable skills, which can sink a disability claim. Then, I describe the claimant’s functional limitations, and ensure that all sources of medical treatment are listed, so that Social Security gets a complete medical record. Lastly, I ask the client which of his or her doctors are most supportive, so that I can get a doctor’s opinion.

For me, this process means front-loading the time spent on a disability claim. The hours of getting to know a client, the medical history and work history, are all spent before even applying for benefits. For the client, getting help with the disability application means that common mistakes are avoided, all the necessary details are included, and the application is supported by a winning theory of the case.

Your initial consultation is always free, and there are no legal fees unless you receive disability benefits. 

If you are wondering if your medical condition is severe enough to receive disability benefits, and you live in Maine or New Hampshire, please ask for a free case evaluation. If you prefer, you can call me or send an email.

Contact Gordon Gates

The latest average processing time statistics for Social Security hearing offices around the country were distributed by NOSSCR in the May 2010 Social Security Forum, a newsletter for its members. 

The average processing time for the Portland, Maine hearing office is now 340 days, just over 11 months. 

Processing time runs from the date of the hearing request to the day a decision is issued. The 340 days is an average. Some claims are resolved more quickly, but a claim that requires a hearing and a written decision may take longer. 

Check the average processing times for all the hearing offices.

The latest statistics for average processing time have been released by the SSA and distributed by NOSSCR in its May 2010 newsletter. The Manchester, NH Social Security hearing office has an average wait time of 416 days, or about 14 months, for a decision.

Processing time runs from the day the hearing office receives your hearing request to the day a decision is issued. The 416 days is an average. Some claims are resolved more quickly, but a claim that goes to hearing and requires a written decision may take longer.

While the average wait for a hearing decision in New Hampshire is 76 days longer than in Maine, New Hampshire is a "prototype" state that skips the intermediate Reconsideration step of the Social Security disability process. Since 4-5 months are not spent waiting for a Reconsideration determination, claims are actually moving from the initial denial to a hearing more quickly in New Hampshire than in Maine.

Read more about the New Hampshire Social Security disability claim process.

Here is a selection of recent notable posts from the Social Security disability blogs:

Social Security has updated the ALJ disposition data for fiscal year 2010 on its website. This database shows how many cases each judge has decided, and how many were granted and how many were denied. The data now runs through April 30, 2010. So you get a better picture of each judge's recent record.

This is great stuff for those of us in this practice area, but it should be taken with a grain of salt. You can still win your disability claim with a judge who denies a lot of cases, and you can still lose with a judge who grants a lot of cases. The merits of your claim and the medical evidence demonstrating disability remain the most important factors in the decision.

As I looked at the names of the judges in the database, I noticed that the name of the 11 percent ALJ was not there. Perhaps he retired. That's good news for claimants with hearings at the Orlando, Florida hearing office.


When you apply for Social Security disability benefits, the medical record is not always sufficient for a disability determination. A disability examiner (or an administrative law judge) may schedule a consultative exam (CE) with a physician or a psychologist to assist them in assessing your medical condition and functional limitations. 

The claimant should plan on attending this exam, but talk with your disability lawyer first. Because some doctors that perform CEs are better than others, and your own doctor is the best of all.

We have one local doctor, an orthopedist, who does a thorough CE and always includes a medical source statement. His report is almost always helpful to the claimant's case. However, sometimes DDS assigns the CE to a different local doctor. The second doctor – and I am not making this up – is a proctologist, which may not be what you want (at least metaphorically) for your disability consultative exam. His examination and reports tend to be more perfunctory, and rarely help the claimant in my experience. 

I intervened recently in one of these. I cancelled the CE scheduled by Social Security, because the claimant was able to schedule an examination with her primary care physician. Her doctor completed a medical source statement that should be very helpful to the claim.  

A CE conducted by the claimant's treating doctor is preferred under Social Security's rules. See POMS DI 22510.010 section B. However, it is often difficult to get the claimant's doctor to do the CE. Social Security does not pay much for the exam, so most doctors decline the opportunity.

Read the posts below for differing perspectives on consultative exams:


Above is a picture of baby Bridget's little toes. 

Below is a selection of recent notable posts from the Social Security disability blogs:



Sometimes a claim for Social Security disability benefits is denied after the date last insured (DLI) has passed. If that claimant files a subsequent claim for benefits, that subsequent claim may be denied based upon res judicata.

Res judicata, which is Latin for "the thing has been decided," is the legal principle that a final judgment is conclusive upon the parties in a subsequent litigation involving the same cause of action. 

In the context of Social Security disability, the principle of res judicata keeps Social Security from having to decide the same claim over and over again. This makes sense, because a claimant's current medical condition is irrelevant to the determination of disability if the date last insured has gone by. 

Nevertheless, res judicata has a limited application in Social Security disability claims. If there is new and material evidence, or a change in the listings, res judicata will not bar a subsequent claim. See HALLEX I-2-4-40. 

New evidence can be current evidence. It just needs to relate back to the insured period. For example, a retrospective opinion from a treating doctor that the patient had serious functional limitations prior to the date last insured would constitute new and material evidence, and a new claim would not be barred by res judicata.

Also, remember to request reopening of the prior claim.

Reconsideration is an intermediate step in the Social Security disability claim process. If DDS denies your initial claim and you appeal, the claim goes back to a different claim examiner at DDS for Reconsideration. In 5 out of 6 claims, the new examiner denies the claim again. For most claimants, Reconsideration is an unnecessary detour on the way to a hearing by an administrative law judge.

There are ten "prototype" states, however, that skip the Reconsideration step. In those states, the appeal of a denied claim proceeds directly to a hearing with an Administration Law Judge. The 10 prototype states are: Alabama, Alaska, California (Los Angeles North and West areas), Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York (Brooklyn and Albany areas), and Pennsylvania. Social Security has been evaluating this streamlined disability process in these states since 1999.

The SSA is planning to reinstate the Reconsideration step in the prototype states, starting with the state of Michigan, and then Colorado. Commissioner Astrue testified before Congress on April 27th on this issue.

I handle Social Security disability cases in both Maine and New Hampshire. Maine has Reconsideration, and New Hampshire does not. So I see claims routed to a hearing both with and without the Reconsideration step. Personally, I do not think that Reconsideration adds much to the process, and it is the source of significant delays here in Maine.

Of course, about 15% of claims are allowed at Reconsideration, so the number of claims appealed to the hearing level is reduced by the Reconsideration step. But that reduction comes at the expense of an additional 4-6 month wait for the 85% of claimants whose claims are denied again at Reconsideration.

So while reinstating Reconsideration would help to reduce the backlog at the Social Security hearing offices in prototype states, it mostly just shifts the backlog from the hearing offices to the DDS state agencies. From the claimant's perspective, there is no difference. 

The SSA wants to have the same Disability Case Processing System for all the DDS agencies. Currently, each state DDS has its own unique computer software, and that has got to be a nightmare for Social Security.  Having one software system shared by all the DDS agencies pretty much requires that all the states have the same claim process, which means all the states must have the Reconsideration step. That, rather than backlog reduction, is the real reason for the switch back to Reconsideration for the prototype states.