Social Security Disability

Congress has defined disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment, which makes you unable to do your previous work or any other substantial gainful activity which exists in the national economy. To determine whether you are able to do any other work, we consider your residual functional capacity and your age, education, and work experience."

From this definition has emerged a standard set of questions which must be asked of each claimant (the person who is applying).

1. Is the individual gainfully employed? The answer to this must be "no."

2. Is there a severe impairment (or group of impairments) which exist?

3. Will the impairment(s) last at least 12 months or result in death?

4. Does the impairment meet any of the standards set by SSA as being severe enough to grant disability?

If questions 2, 3, and 4 above can be answered "yes," then that person will be awarded benefits. If all of the above questions, except number 4 can be answered "yes," then several more questions must be asked. If the answer to number 4 is "no," then SSA must ask:

5. Can the individual perform any of the work s/he has done in the last 15 years? If the answer to this is "yes," then that person is considered not disabled. If the answer to number 5 is "no," then SSA must ask:

6. Given the limitations of the individual's impairment, are any of the skills s/he learned in past work able to be used in another occupation that would require very little retraining? If the answer to this last question is "yes," then that person is not disabled. If the answer is "no," then s/he must be found disabled.

All of the above is based on certain definitions, assumptions, and conditions which pertain to age,education, work experience, and residual functional capacity.

Age

In general, SSA operates on the assumption that the older one gets, the less able s/he is to learn new skills. An individual under the age of 50 is referred to as a "younger individual." Ages 50 to 54 are called "closely approaching advanced age;" 55 and over is "advanced age," and ages 60 to 64 are called "closely approaching retirement age."

Education

SSA makes the assumption that the more education one has, the better able s/he is to make adjustments in jobs.  Conversely, the less education, the less able one is to adjust.  So if one has a severe impairment, and cannot read or write, s/he should be found disabled. Education through the 6th grade or less is termed "marginal;" 7th grade through the 11th is "limited."  If one has a 12th grade education or a GED, then the question remaining is whether or not s/he has done work which permits entry into another group of jobs which require many of the same skills as s/he was doing before, or less.

If there are jobs in the economy which are related in skills to the one(s) s/he was doing within the last 15 years, and which s/he is determined capable of doing given the limitations imposed by the impairment(s), then s/he will not be found disabled.

Residual Functional Capacity

Residual Functional Capacity is the total of what one is left capable of doing after impairments take their toll.

The levels of capability have been assigned names which relate to the work one is capable of doing: sedentary, light, medium and heavy.

Sedentary Workis defined as "involving lifting no more than 10 pounds at a time and occasionally lifting and carrying articles like docket files, ledgers, and small tools.  Although sitting is involved, a certain amount of walking and standing is often necessary in carrying out job duties.  Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.  By its very nature, work performed primarily in a seated position entails no significant stooping.  Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions."

Occasionally means occurring from very little up to one-third of the time.  Since being on one's feet is required "occasionally" at this level of exertion, standing or walking periods should total no more than 2 hours in an 8-hour workday.  Sitting should generally total around 6 hours in an 8-hour workday.

Light Work is defined as lifting no more than 20 pounds at one time with frequent lifting or carrying of objects weighing up to 10 pounds.  A job is in this category when it requires a good deal of walking or standing.  This is the primary difference between light and sedentary.

A job is also in this category when it involves sitting most of the time.  There often is some pushing and pulling of hand or foot controls.  Generally, these actions require greater exertion than in sedentary work. Few unskilled light jobs can be performed while seated.

Being able to perform the full range of light work means being able to stand and walk, off and on, for around 6 hours of an 8-hour day.  The remaining time requires being seated.  The lifting required is usually occasional rather than frequent. Most light work is done standing rather than sitting.  Use of the hands and arms to grasp and hold is usually essential with light work, unlike sedentary work where use of the hands and fingers for fine dexterous activities is critical.

Medium Workis the ability to lift 50 pounds maximum with frequent lifting and carrying of objects weighing up to 25 pounds.

There are 3 situations where an individual can be able to do medium work and still be found disabled: (1) a 60- to 64-year-old with a marginal education and a history of doing only unskilled work; (2) a 60- to 64-year-old with a limited education who has had no previous work experience; and (3) a 55- to 59-year-old with a marginal education and no previous work experience.

Under 50
For all those under the age of 50, the impairment(s) must limit him or her to less than sedentary unless s/he is not able to read or write.  When s/he is illiterate, then the impairment(s) can limit him or her to a sedentary level of work and s/he can be found disabled if there has been no previous work experience, or if previous work experience has been unskilled.

50 To 54
Those between the ages of 50 and 54 who are limited to sedentary work and have no previous work experience or their work was unskilled, will be found disabled if they have a high school education or less.  If they cannot read or write and have no work experience, or the work experience was unskilled, then they can be limited to light work and still be found disabled.

A 50- to 54-year-old who is limited to sedentary work, who has a high school education andwhose past work was skilled or semiskilled but the skills are not transferable to other jobs will be found disabled. 55 To 59

55 To 59

Those between the ages of 55 and 59 who have a marginal education and are limited to light work will be found disabled if they fall into one of 3 categories: (1) they have no previous work experience, or; (2) the work experience they have was unskilled, or; (3) their work experience was either skilled or semiskilled, but none of their skills are transferable to other occupations or jobs.  High school graduates in this age group who are limited to light work will be found disabled if they have no previous work experience or the past work was unskilled, or their past work was skilled, but their skills are not transferable to other jobs.

60 To 64

Those between the ages of 60 and 64 who are limited to light work will be found disabled if they fall into one of the following 4 categories: (1) they have a marginal education and their work for the past 15 years was unskilled; (2) they have a marginal education and their past work was skilled or semiskilled, but those skills are not transferable to other jobs; (3) they have at least a high school education and their past work was unskilled, or they have no work experience in the past 15 years; (4) they have at least a high school education and their past work was skilled or semiskilled but none of their skills are transferable.

RFC Forms

ResidualFunctional Capacity forms for the most common impairments are in your forms file.  Ultimately, the determination of how much functional capacity remains is reserved for the Administrative Law Judge.  However, these forms fill in a considerable number of gaps which would otherwise be left open to interpretation.  Permitting this to happen could be injurious to your health.  As long as everything else is consistent with your treating doctors' answers, the ALJ usually will accept what s/he says.  They frequently make the difference between winning and losing.

The DOT

The official guide to the classification of all jobs found in the national economy is called the Dictionary of Occupational Titles.  The listings in this guide include the required strength classifications, vocational preparation, and complete job descriptions.  It is not within the scope of this publication to explain in detail this guide. That understanding is better left to the legal representative practitioner.

Given the current legislative environment it is imperative to understand how to reduce your residual functional capacity to less than sedentary.  A detailed explanation of how to do this is in the next chapter, but more often than not, for physical problems, it boils down to the inability to sit for more than 2 hours at a time or 6 hours total in an 8-hour work day.

Activities of Daily Living

There are two major parts to every listed mental impairment.  The activities of daily living questionnaire (page 4-5) is designed to help answer the question of how severe an impairment is in Part B of those Listings.  (See Appendix A.)  Specifically, they provide the evaluator with an indication of how withdrawn and isolated an individual is from others, what circumstances cause an exacerbation of symptoms, such as performing work under stress, or strict supervision.  To what extent has the individual lost interest in activities which were once enjoyable?  To what degree is the ability to think and concentrate affected?  Can s/he read, watch television?  Is s/he taking care of routine matters within the household such as cooking and cleaning, or is there some or total avoidance of doing these things?

The critical issue in answering these questions is whether or not they are consistent with a treating psychologist's or psychiatrist's assessment of a condition.  If the answers are exaggerated - except when there is a somato- form or hysterical disorder - it sends up a red flag to an Administrative Law Judge.  More often than exaggeration, however, those with mental problems minimize their symptoms, so it is extremely important to be as truthful and realistic as is possible.  Get someone who lives with you to check your answers.

Rules To Ignore At Your Peril

1. Do not ask your treating doctor to write a memo saying that you are disabled and cannot work.  Such statements are always rejected by Administrative Law Judges (ALJs) on the basis that doctors do not know what SSA's standards of judgment for disability are. 

2. Make certain you are seeing a doctor of your choosing on a regular basis so that a good and complete medical record has been established.  Evaluations should be typewritten; handwritten notes are rarely read.  Nor do they provide a comprehensive assessment of the medical problems.  Treating doctors are required to be given controlling weight in making a decision as long as what your doctor says does not contradict other reports from other treating and non-treating doctors.

3. All statements by medical professionals must be well supported by objective medical evidence, wherever possible.  Objective medical evidence includes x-ray reports, CT scans, MRIs, endoscopic exams, EEGs,ECGs, blood tests, neurological exams, etc. for physical impairments.  Clinical observations should be as detailed as much as possible.  Mental impairments should be supported with as much testing and therapeutic findings as possible.  Testing should include a Minnesota Multiphasic Personality Inventory (MMPI), Rey Auditory Memory, Wechsler Adult Intelligence Scale (WAIS), Wide Range Achievement Test (WRAT), and clinical observations and findings.

While pain is subjective, as long as there are sound medical reasons for causing pain, then it will be taken into consideration.

The degree of pain cannot be measured, but its effect on thinking and concentration can be determined with an MMPI or IPAT.  What you do, or don't do, during a typical day is also taken into consideration in evaluating the intensity and limiting effects of pain.  The greater the degree of pain, the less one is able to do.

ALJ Listing Form

At the fourth step of the decision-making process, where the adjudicator must ask whether the individual’s impairment meets  or equals the Listings of Impairment, this form helps resolve any issues which might otherwise be left open to questions. It should be given to your treating doctors to answer, along with a copy of the Listings which apply to you.

In theory, if your doctor replies that your impairments do meet or equal one or more of the Listings, that should be the end of it – you should be But, in practice, it doesn’t always work that way. The bottom line is always, how well does the individual function in spite of his or her impairments. So, be sure to get your doctor to complete the residual functional capacity assessment, too.