Social Security Disability


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