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As discussed in the previous post, step 4 of Social Security’s sequential evaluation process is a determination of your ability to return to your past relevant work. Your “past relevant work” is work you have performed in the past 15 years at the SGA level.

All Social Security does at this step is compare your physical and mental residual functional capacity to the requirements of your past work.

To determine the requirements of your past work, SSA looks at the work history report, which describes how you actually performed your past work. SSA also considers how the job is generally performed in the national economy, according to the Dictionary of Occupational Titles.

Social Security looks at the fit between your retained work capacity (your RFC) and the requirements of your past work. If you still retain the capacity to perform your past relevant work, your claim will be denied.

For more on this topic, read Social Security Ruling 82-61.

A real life example of an unsuccessful work attempt may help to illustrate why this topic is so important. This example is one of my cases that is currently pending in Maine at the Reconsideration level.

This claim has an alleged onset date of 10/20/2006. However, from 5/18/2007 – 9/18/2007 this claimant returned to work part-time, and earned good money (well above the level of SGA) for 4 months. But the work became too much for him, and he had to stop. He subsequently filed a claim for Social Security disability benefits, which is now pending.

So there it is: 4 months of work above the level of SGA, smack in the middle of the disability period. As a result, there is not a 12 month disability period, as required. If there were not an exception for an unsuccessful work attempt, the claim would either have to be denied at Step 1 of the sequential evaluation process, or a new onset date of 9/19/2007 (after the 4 months of work) would be used.

However, with the UWA, the 4 months of work is excused. The disability period will run from the original onset date of 10/20/2007. This results in an additional 9 months of retroactive benefits. At a PIA of $1,340, that’s another $12,060 in benefits due the claimant.

If you have worked at the SGA level at any time since the alleged onset date of your Social Security disability claim, it can be problematic for your claim. You must have a 12 month period of disability (or a condition which is expected to result in death) to qualify for Social Security disability. That means means 12 months or longer with no work at the SGA level.

However, if your work after onset lasted for six months or less and ended due to your impairments, then it may qualify as an unsuccessful work attempt, and not be held against you. A work effort under three months is easier to explain away. The criteria for an unsuccessful work attempt (UWA) are found in 20 C.F.R. 404.1574(c) and Social Security Ruling 05-02.

Being disabled means you can’t work. Step 1 of Social Security’s 5-step sequential evaluation process is a determination of whether or not you are working. To make that determination, Social Security looks at whether you are engaged in substantial gainful activity (SGA). If you are an employee and a making more than this amount each month, Social Security concludes that you are engaged in SGA. As a result, you are not disabled under Social Security’s rules.

This is a very important topic. As a claimant, if you have been working at the SGA level since the onset of your disability, you can lose you disability case before the judge ever considers the severity of your medical impairments.

As a Social Security disability lawyer, knowing the details of the requirements of SGA, including the unsuccessful work attempt, can solve problems in your cases with work after onset.

Your PIA is your "Primary Insurance Amount." That is the Social Security term for the amount of your monthly benefit, should you retire or become disabled.

Your PIA depends on how much you have paid into the system. Social Security has a complicated formula to calculate it. In general, sporadic workers may have a disability PIA below $700. Solid earners may be higher than $1,800 per month. Most people are in between. SSI recipients have a different monthly benefit.

If you want to know your PIA, check your annual Social Security statement.

Social Security News has published the allowance and denial rates for Social Security disability claims (including SSI and concurrent claims) for fiscal year 2007. You can see the state by state breakdown here and here. These statistics are remarkable. As Charles Hall says in his post, note the disparities in the allowance/denial rates among the states.

For Maine, 63.8% of initial claims were denied in 2007. That’s almost 2 out of 3. Of the denied claims that were appealed, 82.1% were denied again on reconsideration. That’s almost 5 out of 6.

For New Hampshire, 44.8% of the initial claims were denied. New Hampshire is one of the ten states where initial denials are appealed directly to the (ALJ) hearing level, without a reconsideration. You can read more about the New Hampshire disability claim process here.

I have been thinking about the meaning of the "permits a rebuttable inference" language used by the judge in the previous post. All that means is that the judge may consider your prior work record as a factor when evaluating your credibility. It is a legalistic way of saying "I can hold your poor work record against you unless I am persuaded not to hold it against you."

Credibility is important because most people who are disabled physically have subjective symptoms such as pain. The judge needs to determine if the pain is as bad as you say it is, and if it limits your ability to work as severely as you say it does. This requires a credibility determination, and it happens in just about every case.

The SSA has a regulation regarding the factors that must be considered by the judge when assessing credibility. Social Security Ruling 96-7p also discusses those factors. Both the regulation and the ruling include your prior work record among the factors to be considered. See 20 C.F.R. 404.1529(c)(3).

This does not mean that if you have a poor work record you will lose your case, or if you have a great work record you will win your case. It is just one of several items that the judge weighs. Having said that, however, when I represent a claimant with a poor work record, at the hearing I always try to explain why it is poor – often it is due to the claimant’s impairments. And when I have a claimant with an excellent work record, I always point it out to the judge.

One of the items an administrative law judge may consider when deciding your disability case is whether or not you were steadlily employed prior to applying for disability. All else being equal, a disability claimant with a twenty year work record tends to be looked at more favorably than a person with the same impairments who has never had steady work.

Some judges place great weight on this issue. I recently read an ALJ decision that said the following:

In this instance, the claimant has a poor work record. The claimant’s work reveals an individual who was chronically underemployed or unemployed. A claimant with a good work record is entitled to substantial credibility in assessing the severity of pain. The converse is also true, that a poor or nonexistent work record permits a rebuttable inference that the alleged claims of severe disabling pain and marked restriction of function are not credible. The claimant’s poor work record permits the inference that the claimant does not possess a strong work ethic, and is not entitled to the favorable inference those who possess a commendable work ethic are entitled to receive.

Ouch.

Now, the judge who denied this particular claim will grant a claim from the bench when the claimant is highly motivated to work. I’ve seen it.

Other judges do not put so much weight on the work record. So you have to know your judge – a recurring theme of mine, if you haven’t noticed.

The Social Security Administration uses a 5-step sequential evaluation process to determine whether or not you will receive disability benefits.

Step 1: Are You Working?

Step 1 determines if a person is “working”, according to the Social Security Administration definition. Earning more than this amount a month as an employee is enough for disqualification from receiving Social Security disability benefits. If you are self-employed, the determination is more complicated, and a Social Security disability lawyer can help.

Step 2: Is Your Condition Severe?

Step 2 evaluates whether your medical condition is severe enough to significantly limit your ability to perform basic work activities. In addition, the impairment must last, or be expected to last, for a continuous period of not less than 12 months or result in death.

Step 3: Is Your Condition A Listed Impairment?

Step 3 asks if the impairment meets or equals a medical “listing.” The Social Security Administration uses more than 150 categories of medical conditions, called “listings.” You can browse the Social Security listed impairments for adults. These conditions are severe enough to presumptively preclude a person from working. If you “meet or equal a listing” you will be granted benefits. If you do not meet a listing, the SSA proceeds to Step 4.

Step 4: Can You Do Work You Did Previously?

Step 4 explores your ability to perform work you have done in the past 15 years, despite your physical or mental impairments. If the Social Security Administration finds that you can still perform this past relevant work, benefits are denied.

It does not matter at step 4 if your former employer would not hire you, or if the place where you worked is no longer in business, or if all those jobs are now done in China. All Social Security does at this step is match your physical and mental residual functional capacity with the requirements of your former job.

If you cannot perform your past relevant work, then the process proceeds to the fifth and final step.

Step 5: Can You Do Any Other Type Of Work?

Step 5 determines what other work, if any, the person can perform. Social Security considers your age, education, work experience and physical/mental condition to make this determination. If Social Security finds that you cannot make the transition to other work, you will be granted benefits.

Because Social Security considers your age at this step, there are special rules for claimants over the age of 50.

Social Security explains the five-step sequential evaluation process at 20 C.F.R. 404.1520.

Knowledge of the 5 step sequential evaluation process is critical to making a successful Social Security disability claim. An experienced Social Security lawyer can help you with your disability claim.

Your mental health condition can be the basis for a successful Social Security disability or SSI claim, if the condition is severe enough to prevent you from working.
 
Simply having a diagnosis such as “anxiety,” “depression” or “bipolar disorder,” is not enough for the Social Security Administration to grant you benefits. Rather, you must show that your mental health condition is severe enough to keep you from sustaining employment.

Social Security has several listed impairments that correspond to specific mental health conditions or diagnoses.  The most frequently seen are Affective Disorders and Anxiety Disorders.  Affective Disorders include Depression and Bipolar Disorder.  Anxiety Disorders comprise 5 different conditions, including Generalized Anxiety Disorders, Phobic Disorders, Panic Disorders, Obsessive Compulsive Disorders, and Post-traumatic Stress Disorder or PTSD.

We will work with your psychiatrist, psychologist, therapist or counselor to help with your Social Security claim. We will seek their opinion regarding the severity of your mental health condition.

Also, we can help these medical professionals to translate your mental symptoms into functional limitations that the Social Security Administration will use to evaluate your claim.

As a general rule, it is important for those with mental impairments to have a Social Security disability attorney to help with the Social Security disability or SSI process.

If you are wondering if your mental health condition is severe enough to receive disability benefits, and you live in Maine or New Hampshire, please ask for a free case evaluation.