The definition
of disability for the purposes of social
security disability law is a term of art. It is
a definition often different from the definition
of disability in insurance policies and in other
contexts of law. It is unique to federal social
security. It surprises many people who hear of
it for the first time.
With few
exceptions, a person is not considered disabled
for purposes of social security disability
unless the person is unable to do 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, 20 C.F.R. 404.1505.
See also, sections 404.1508,
404.1509,
404.1510
and 404.1511.
There must be a severe impairment, which makes
the claimant unable to do previous work or any
other substantial gainful activity that exists
in the national economy, 20 C.F.R. 404.1566.
The law provides no remedy for those who, as a
result of physical or mental injury or illness,
simply cannot do their old job, or any of their
past relevant jobs, or any jobs for which they
have education, training or experience, if they
can do other work. The fact that there may be no
jobs that the claimant can do and which are
available within the person's geographic area is
irrelevant. In most cases, as long as the
claimant can perform the basic work activities
necessary to do some hypothetical jobs that
exist in substantial numbers in the national
economy, the disability claim will be denied.
The claim
is usually filed without an attorney at a local
social security office. A decision is usually
made within 60 days. Upon denial, the claimant
must file a request for reconsideration within
60 days of the denial notice. An attorney is not
needed at that point either. A decision is
usually made again within 60 days. The claimant
then has 60 days after the notice of denial of
reconsideration within which to file a request
for hearing before an administrative law judge.
This is the point at which attorneys usually
become involved.
In what is
irritating to claimants who do not prevail in
their claims, the social security administration
frequently denies the claims based on reports
from physicians or vocational experts who never
meet, examine or evaluate the claimant. They
perform record reviews and submit their reports
to the agency. They remain anonymous unless the
file is obtained and reviewed by the claimant or
attorney. Their reports are considered competent
evidence, nevertheless.
The
majority of social security disability claims
are sufficiently similar so that a single
pattern of rules discussed herein should be
applicable and answer most questions.
There is a five-step process
that applies for determination of social
security disability benefits, 20 C.F.R. 404.1520.
The first
step is to evaluate whether the claimant is
still working, 20 C.F.R. 404.1520(b).
If the answer is affirmative, in most cases, the
inquiry stops, because no benefits are
available.
The second
step is to evaluate whether the claimant has
what is known as a "severe impairment." 20
C.F.R. 404.1520(c).
Such impairment must substantially restrict
basic work activities. Examples include bending,
lifting, carrying, twisting, stooping and
squatting restrictions, as imposed by doctors.
The rules are quite specific on what medical
evidence constitutes sufficient proof of a
severe impairment. See, 20 C.F.R. 404.1520,
404.1520a
and 404.1521.
The third
step is to evaluate whether the claimant meets
or exceeds the criteria of any one of several
"listed impairments," for which automatic
qualification for benefits is dictated by the
rules, 20 C.F.R. 404.1520(d).
Detailed rules spell out exactly what illnesses
or conditions are "listed impairments," and what
findings must be made by the doctors, 20 C.F.R.
404.1525.
See also, 20 C.F.R. Part 404, Subpart P,
Appendix 1. Intuitively, one can imagine
that there are certain very serious illnesses
and conditions with which an inflicted person
could not hope to find work. Persons in such a
situation are granted benefits without
completing the five-step process.
The fourth
step is to evaluate whether the claimant can
perform any of his or her past relevant work, 20
C.F.R. 404.1520(e).
See, 20 C.F.R. 404.1560.
The social security administration looks back at
least 15 years to determine what past work is
relevant. A thorough job history is reviewed.
Job training and acquired skills are analyzed.
The transferability of skills is an important
factor. Inability to do the last job the
employee had does not necessarily constitute
inability to do past relevant work. Inability to
do past relevant work gets the claimant to the
last step.
The fifth
step is the most difficult to take. The question
is whether the claimant can perform the work of
any job that exists in the national economy, 20
C.F.R. 404.1520(f).
See also, 20 C.F.R. 404.1566.
In what may seem surprising to those unfamiliar
with the system, a determination of disability
often cannot be established by the doctors who
treat or examine the patient, but only by
vocational experts. Physicians establish the
residual physical or mental functional capacity
limitations, 20 C.F.R. 404.1545,
404.1546
and 404.1561.
Too often claimants rely on their doctors, who
either are not aware of the requirements of the
rules, or are not competent to evaluate what
jobs a given individual can or cannot do with a
certain work restrictions. The proof necessary
to prevail usually requires the input of
vocational experts, 20 C.F.R. 404.1560.
A frequent reason why many claimants lose in
social security disability claims is that they
do not present competent evidence from a
vocational expert; proof in the form of an
opinion that the claimant cannot do any work in
the national economy. Vocational experts choose
the appropriate residual physical or mental
exertion classification to which the claimant
belongs, 20 C.F.R. 404.1561,
based on the physician's findings that the
claimant can do either heavy, medium, light or
sedentary work, 20 C.F.R. 404.1567.
They then analyze whether the claimant's age, 20
C.F.R. 404.1563,
education, 20 C.F.R. 404.1564,
skill level, 20 C.F.R. 404.1568,
of past relevant work, 20 C.F.R. 404.1565,
and transferability of skills, 20 C.F.R. 404.1568(d),
make the candidate eligible for any work in the
national economy. Disability claims are often
denied unless application of a detailed set of
esoteric rules dictates a finding that the
person simply cannot do any work, 20 C.F.R. 404.1569.
These rules are called the "grids."
Attorneys
who handle these cases often must hire and
advance the payment to physicians and vocational
experts in order to obtain the reports necessary
to meet the criteria established by the social
security rules.
Social Security Regulations, 20 C.F.R. Part 404,
Subpart P
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