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The claimant is 60 years old, and has been a hospital nurse for over 25 years. Now, due to fibromyalgia, coronary disease, bilateral carpel tunnel syndrome and other impairments, she can no longer perform her past relevant work as a nurse.

DDS assessed a light exertional RFC. For a 60 year old claimant with an unskilled work background, that would have been the end of the process. The claim would have been granted according to Medical-Vocational Rule 202.06 (light RFC, advanced age, no transferable skills or education allowing direct entry to skilled work). But DDS decided that the skills from her SVP 7 nurse job would transfer to three other SVP 7 nursing jobs performed at the light exertional level:

As a result, the claim was denied under Medical-Vocational Rule 202.07.

I have reviewed the Social Security disability claim file, and there is not an actual transferable skills analysis anywhere to be found. Social Security has specific rules for transferable skill determinations. Since the existence of transferable skills can make the difference between winning and losing a claim, these rules are critically important.

Medical-Vocational Guidelines Section 202.00(f) states: 

For a finding of transferability of skills to light work for persons of advanced age who are closely approaching retirement age (age 60 or older), there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.

Social Security Ruling 82-41 elaborates:

In order to establish transferability of skills for such individuals, the semiskilled or skilled job duties of their past work must be so closely related to other jobs which they can perform that they could be expected to perform these other identified jobs at a high degree of proficiency with a minimal amount of job orientation.

I see two potential problems right away with the DDS vocational determination. First, the DOT job descriptions of the other three nursing jobs contain some different skills than those acquired from the generic nurse job. In particular, the job of nurse supervisor has a whole set of supervision and management skills that are not part of the job description of a regular nurse. Second, each of the three light exertional nursing jobs may require a significant vocational adjustment, contrary to 202.00(f) and Ruling 82-41. Resolving these issues will probably require a hearing.

The claim also needs medical development. The claimant stopped working largely because she could not be on her feet all day, as required by her job. So the DDS light exertional RFC is beyond the claimant’s actual abilities. Medical source statements from her doctors are likely to describe a sedentary RFC, which would rule out those three nursing jobs, and would resolve the issue of transferable skills.

Lastly, the claimant has good days and bad days with her fibromyalgia. So there is also the issue of whether or not she is able to work on a sustained basis.

Each of these areas will be developed as the claim moves forward.

A round up of notable articles from the Social Security disability blogs is published right here every other Friday:

The latest average processing time statistics have been distributed via the March NOSSCR newsletter. The average processing time for the Manchester, New Hampshire hearing office is 447 days, just shy of 15 months. 

Processing time runs from the date of your hearing request to the day a decision is issued. The 447 days is an average. Some claims are resolved more quickly, but a claim that requires a hearing and a written decision may take longer.

The March NOSSCR newsletter also had statistics for the number of hearings per hearing office in fiscal year 2010. Through January 2010, the Manchester ODAR conducted 915 hearings, 404 of which were in person hearings, and 511 of which were video hearings.

The number of video hearings seems about right to me. The Manchester hearing office handles all the hearings for Vermont Social Security claimants, and often these these hearings are held by video conference from Burlington or St. Johnsbury, VT. Likewise, the hearings for residents of northern New Hampshire are usually held by videoconference from St. Johnsbury.

Every now and then I encounter a case that potentially involves a claim for benefits by a disabled surviving spouse. This is a claim for disability benefits based upon the work record of the deceased spouse.

A claimant without enough quarters of coverage for Social Security disability insurance on his/her own work record could qualify for disability benefits via the spouse’s work history. Or, perhaps the deceased spouse was a better earner, and the PIA is higher for that spouse’s work record.

The requirements for a disabled widow or widower claim are very specific, and are set forth in 20 C.F.R. 404.335. The claimant must be:

  • between ages 50 – 59; and
  • disabled under Social Security’s rules; and
  • disabled within 7 years of the death of the spouse; and
  • unmarried; or married again after attaining age 50, and met the disability requirements at the time of the remarriage.
  • If the marriage lasted 10 years or longer, a divorced spouse still qualifies. See 20 C.F.R. 404.336.

When you have a client who is the right age, and there is a problem with quarters of coverage or a low PIA, remember to inquire about a deceased spouse (or former spouse).

{Update: Be sure to read 20 C.F.R. §404.335(c)(1) regarding the 7 year requirement}

This question brought a reader to my blog recently: Can a lawyer represent a claimant for a Social Security initial determination? 

The answer is yes. You do not have to wait until you receive a denial letter to seek the help of an attorney. 

There are some good reasons to get a lawyer involved early in a claim for disability benefits. In my view, it is particularly important for claimants over the age of 50 to have help when applying for Social Security disability benefits.

Sometimes a denial of an initial Social Security disability application is due to something of a time lag between your medical condition and your medical records.

Unless your impairment had a sudden onset, it can be difficult to determine from your medical records when a condition became disabling. Particularly for those who apply for disability benefits soon after stopping work, there is often no difference in your medical records between the time you were working and the time since you stopped. This can lead a disability examiner to deny your disability claim based upon the medical evidence presented.

By the time your claim gets to a hearing by an administrative law judge, well over a year (or much longer, in many parts of the country) has gone by since your initial denial, and the medical picture is often much clearer. One reason more claims are won at the hearing level is that there is often more complete medical evidence by the time a hearing is held.

To minimize the time lag between your medical condition and your medical records, be sure to tell your doctor about your functional limitations. The doctor should enter these limitations into your treatment notes, so that it will be apparent to a person reviewing your medical records that you are experiencing significant limitations.

Make sure to have ongoing medical treatment if at all possible. Over time, the medical record of your impairments will become stronger, and will provide a better basis for a favorable disability determination.

Every other Friday, we round up notable articles from the Social Security disability blogs. Here is today's installment:

In a recent blog article entitled Another Reason You May Be Denied Your Social Security Disability Benefits, Indiana Social Security disability attorney Tom Ebbinghouse makes an excellent point regarding denials of Social Security disability claims by the various DDS agencies determining Social Security disability and SSI claims. [These agencies are known by slightly different names in certain states; they are called Disability Determination Services (DDS) in Maine and New Hampshire, but called the Disability Determination Bureau (DDB) in Indiana.] 

First, Tom quotes from the Winter newsletter of NADE (the National Association of Disability Examiners):

It takes an average of two years for a newly hired disability examiner to become fully trained and proficient to the point they can function independently and contribute to the process of making timely and accurate disability decisions. … Low salaries, hiring restrictions and the stress of the job have contributed to high attrition (12.3%) in the DDSs.

Tom then concludes:

Constantly having to replace 12.3% of the workforce and it taking two years before they can function independently, plus the stress of the job to get the work out fast, combined with low pay, may be a reason that DDB makes the wrong decision so many times.

The important point for you is that you should not be discouraged when your claim is turned down at the initial or reconsideration stages. [bold emphasis added]

I completely agree. 

Do not be discouraged by the initial or reconsideration denial of your disability claim. A denial by DDS does not mean that your claim does not have merit. 

Make sure that you appeal that denial within 60 days. And, while you’re at it, please get some help with your claim, which may improve your chances of ultimately receiving disability benefits.