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I admit when I am wrong. Ask anybody who knows me.

In a recent blog post praising the Portland, Maine Hearing office for its spectacular performance for average claim processing time, I also said:

If there is a downside to this remarkable performance, I think the Portland hearing office has become less receptive to on the record requests. I file an on the record request from time to time, when the medical evidence is particularly strong or when the claimant is over 50 years old and would grid favorably under the Medical-Vocational guidelines. I haven't been getting these granted lately, and it may be that there is little incentive to grant an OTR request when a hearing would be just a few months away.

Okay, I take that back.

I just received a fully favorable decision in the mail today from the Portland hearing office, as a result of a recent on the record request. Admittedly, it was a very strong case. But I was wrong to surmise in my earlier post that the Portland hearing office was not giving OTR requests full consideration.

However, it may be that the Portland ODAR got the last word on this matter. The fully favorable decision, which I was very pleased to receive in today's mail, arrived postage due.

Lyme disease can certainly provide the basis for a successful Social Security disability claim. However, it can be a long road.

I saw a recent news story regarding a Connecticut man suffering from chronic Lyme disease, who is also struggling to have his Social Security disability claim granted. His story is all too common.

Chronic lyme disease often involves headaches, chronic fatigue and pain. In addition, for this gentlemenan in Connecticut, bright light hurts his eyes; loud noises bother him; his joints hurt him constantly.

There is no specific Social Security listing for Lyme disease. A Lyme disease disability claim is evaluated under Listing 14.09D Inflammatory Arthritis, which is not a precise fit. That means, as a practical matter, a Lyme disease claim will usually proceed to steps 4 and 5 of Social Security's sequential evaluation process. Further, claims involving chronic pain can be difficult for DDS to evaluate, so this gentlemen may have to wait for a hearing on his disability claim. 

This is the timely topic, because the ticks that carry Lyme disease reappear this time of year. If you have Lyme disease or suspect that you do, you need a Lyme-literate primary care physician, and an infectious disease specialist who handles Lyme cases. Likewise, for your Social Security disability claim, retain a Social Security specialist.

At step 4 of Social Security's sequential evalution process, the SSA considers your ability to perform your past relevant work. This is a very important step in the process, because if the SSA determines that you retain the residual functional capacity to return to your past relevant work, your disability claim will be denied.

For those applying for disability benefits, it is important to fully describe the requirements of your past jobs in your work history report. Don't forget to specify the lifting, standing and other requirements of your prior work.

Social Security will match your current abilities to the requirements of your past work. The SSA looks at both the way you described your past work, and how those jobs are generally performed in the national economy. Social Security will simply compare your abilities with the requirements of each of the previous jobs. It doesn't matter if the past job doesn't exist anymore.

Not all your past work is past relevant work.

You may have learned job skills at your previous work. Social Security classifies jobs according to skill level. If your acquired job skills can transfer to skilled or semi-skilled work that you are still able to do, it can be problematic for your claim.

Eliminating your past relevant work is important for all claimants, but particulary for Social Security disability claimants over the age of 50.

This article is the last in a series regarding how your previous work can affect your Social Security disability claim. We complete the series with an opinion from the highest court in the land, because there is actually a U.S. Supreme Court case regarding "previous work" in a Social Security disability claim. The case is Barnhart v. Thomas, 540 U.S. 20 (2003).

Pauline Thomas worked as an elevator operator for six years, until her job was eliminated. She applied for disability insurance benefits under Title II of the Social Security Act. After a hearing, an administrative law judge denied her disability claim, finding that Ms. Thomas had the capacity to return to her past relevant work as an elevator operator. The judge rejected the claimant's argument that, since jobs as an elevator operator no longer exist in substantial numbers in the national economy, she could not return to her past relevant work.

The claim went all the way to the U.S. Supreme Court, which is the seventh level of review available for a Social Security disability claim (count 'em: 1-initial review, 2-reconsideration, 3-hearing by an ALJ, 4-Appeals Council review, 5-U.S. District Court, 6-U.S. Circuit Court of Appeals, and 7-U.S. Supreme Court).

The Court had to interpret 42 U.S.C. 423(d)(1)(A), which states in part:

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy… "work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

At issue was whether the phrase "which exists in the national economy" applies to previous work, or only applies to other work. The Court decided 9-0 that the phrase did not apply to previous work. As a result, the Court upheld the SSA finding that the claimant could return to her previous work, even though those jobs don't exist anymore.

So at step 4 of Social Security's sequential evaluation process, all the SSA does is match your physical and mental abilities to the physical and mental requirements of your past work.

At step 5 of the sequential evaluation process, the SSA considers your vocational abilities in addition to your medical condition, age and education to determine whether or not you can perform other work.

Acquired job skills can affect the outcome at step 5 if those skills can readiliy transfer to other jobs. Vocational skills trump age in a Social Security disability claim.

Let's look at an example to see how it works.

Suppose we have a 56 year old car mechanic who can no longer perform that medium exertional level job. He is given a residual functional capacity at the light exertional level. For an unskilled worker or a worker without transferable skills, the Medical-Vocational Guidelines would direct a finding of "disabled" under grid rule 202.04 or 202.06. However, if there is a determination that the worker has acquired job skills that transfer to skilled or semi-skilled jobs within his residual functional capacity, a finding of "not disabled" is directed by grid rule 202.07.

The acquired skills must be "readily transferable to a significant range of skilled work within an individual's residual functional capacity" to deny the claim at step 5. See Medical-Vocational Rules 201.00(e) and 202.00(e).

At a hearing, testimony of a vocational expert would be required regarding the acquired skills and the jobs to which they would transfer. Whenever transferable skills are at issue in a claim, you have to be prepared to cross-examine the vocational expert with finesse. Remember, disability hearings where transferable skills are contested are pretty rare – maybe 2 or 3 times in a hundred hearings. And each one of those cases has unique facts. So the vocational expert is way out of his or her comfort zone.

Read Social Security Ruling 82-41. Read it, print it out and take it with you to the hearing. Ruling 82-41 is still the touchstone for job skills and transferability.

Social Security disability is an insurance policy, and you gain that insurance coverage through the Social Security taxes that you pay when working. Social Security counts each quarter that you work as 1 credit.

How long do you have to work before you are initially covered for Social Security disability? It depends upon your age.

Before age 24, you need just 6 credits earned in the 3-year period prior to the onset of your disability.

Between age 24 and 31, you need to have credit for working half the time between age 21 and the onset of disability. For example, if you become disabled at age 27, you would need credit for 3 years of work (12 credits) out of the past 6 years (between ages 21 and 27).

Age 31 and older, you need to have earned 20 credits within the 10 years prior to the onset of disability. Further, you must have the total number of credits shown in this table.

NOSSCR has published the state-by-state statistics for Social Security allowance rates in 2008. Charles Hall has republished the state-by-state numbers on his blog, Social Security News.

In Maine, 35.7% of Social Security disability claims were allowed at the initial determination. At the Reconsideration level, 15.5% of the claims appealed after the initial denial were allowed.

These allowance rates are surprisingly close to last year's numbers.

The SSA's website has an excellent tool for those considering whether or not to apply for Social Security disability benefits.

The Disability Planner has many pages of helpful information regarding Social Security protection if you become disabled. It is worth a visit, and the site is easy to navigate.

I have added a link the Disability Planner to the Resources of Note section on the sidebar of this site.

A medical source statement is an important piece of evidence in a Social Security disability claim. The opinion of your treating doctor regarding your functional limitations should be given controlling weight by the SSA, if the opinion is not inconsistent with the other substantial evidence in the case record. 20 C.F.R. 404.1527(d)(2).

Social Security has a form, entitled Medical Source Statement of Ability to do Work-Related Activities (Physical), for a treating doctor to give an opinion regarding a patient's functional limitations for a Social Security claim. The form is not available on Social Security's website, and it is hard to find anywhere online.

Here is the version of HA-1151 that I use in my Social Security disability practice. Download form HA-1151.

Warning: be careful with this form! If your doctor gives Social Security an opinion regarding your limitations that still allows for employment at the sedentary exertional level, your claim could be worse off with that opinion than without it. It depends upon your particular situation. Do not have your doctor complete the form and blindly send it to Social Security. Get help from a Social Security disability attorney first.

There is a little known Social Security benefit called the Adult Child Disability benefit. I took on one such claim this week, for the first time in quite a while.

An adult disabled before age 22 may be eligible for child's benefits if a parent is deceased or receives retirement or disability benefits. The SSA considers this a "child's" benefit because it is paid on a parent's Social Security earnings record. This benefit is usually more favorable for the claimant than SSI payments.

The "adult child" must be unmarried, age 18 or older, and have a disability that started before age 22.

The SSA makes the disability determination using the usual adult disabilty process.