The ABC*s of a Social Security Disability Claim

The ABC’s of a Social Security
Disability Claim
By Robin Burgess, Esq.
NALS 63rd Annual Education Conference and National Forum
October 3, 2014
8:30 a.m-9:45 a.m.
Chart 1. All Social Security disabled beneficiaries in current-payment status, December 2011
In December 2011, just over 9.8 million people received Social Security disability benefits as disabled workers, disabled widow(er)s, or
disabled adult children. The majority (87.5 percent) were disabled workers, 10 percent were disabled adult children, and 2.6 percent were
disabled widow(er)s.
Chart 6. Disabled beneficiaries in current-payment status, by diagnostic group, December 2011
The impairment on which disability is based varies with the type of beneficiary. In December 2011, diseases of the musculoskeletal system and
connective tissue were the primary reason disabled workers and disabled widow(er)s received benefits; intellectual disability was the predominant
reason for disability among disabled adult children.
Program Highlights
• SOCIAL SECURITY ACT- Passed in 1935 omitted disability insurance and formed the basis
for the government’s role in providing income security, specifically, the old-age
insurance, unemployment insurance, and Aid to Families with Dependent Children
(AFDC) programs.
• Social Security Disability Insurance program was added to the Social Security Act in
1956 under Title II and limited benefits to those 50 years of age and older. The program
was designed to serve workers who were disabled with no realistic expectation to return
to the workforce. The original definition for disability was defined 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 to be of longcontinued and indefinite duration.”
• In 1960, the program extended eligibility to workers younger than 50 and changed the
requirement of a long continued and indefinite duration to a 12-month minimum
durational period.
• In 1974, the under Title XVI of the Social Security Act. Supplemental Security Income
(SSI) program was enacted
Title II and Title XVI of the Social Security
The Social Security Administration administers two entitlement programs
under Social Security Act: Social Security Retirement, Survivor’s and Disability
Insurance Benefits (SSDI) under Title II and Supplemental Security Income (SSI)
under Title XVI of the Social Security Act. 42 U.S.C. §§ 401 et seq; 42 U.S.C. §§ 1381
In order to be eligible for either program, a claimant must meet the
definition of disability. While both programs have the same definition of disability
and generally follow the same procedure, the main differences between the
programs are the eligibility criteria and the amount of benefits paid.
• A disabled claimant is generally only eligible for disability benefits under Title II
(SSDI) if he or she has worked long enough and paid enough into the Social
Security fund during a certain period of time. This is known as being insured for
disability. It should be noted that this is a different standard than being insured
for Social Security Retirement benefits for which a worker must be “fully insured”
(earned 40 quarters-normally four credits per year for 10 years of work. There is
no requirement that credits are earned during any particular time period for
retirement benefits.
• However, for a worker to be “insured for disability”, he or she is required to have
a certain number of credits within a particular time period.
Age of Disability
Before age 24
Required Number of Credits
When Credits Earned
6 credits in 3 years before
Credits can be earned before 21
disability began
1 credit for each year between Credits start with quarter after
age 21 and date disability began the quarter worker turned 21
20 credits
20 credits in prior 10 years
1 credit for each calendar year 20 credits in prior 10 years
between age 21 and year before
disability began
62 to full retirement age
40 credits
20 in prior 10 years
• There are NO credit requirements for Supplemental Security Income (SSI). SSI is
authorized under Title XVI of the Social Security Act for low-income individuals who are
either 65 or older, blind or disabled. SSI benefits are not funded by the Social Security
trust fund, although they are administered by the Social Security Administration.
Supplemental Security Income (SSI) is funded from the U.S. Treasury general funds.
• SSI benefits are payable to disabled individuals who do not qualify for SSDI benefits (lack
of credits) and/or those who do qualify for SSDI benefits, but their monthly entitlement
is below a certain monthly minimum.
• SSI-resources and income are considered when assessing whether or not a claimant is
entitled to SSI benefits. 20 C.F.R. (sign) 416.1100-71; 20 C.F.R. §§ 1201-66. The income
of a claimant’s spouse is also considered.
• $710 is the maximum amount payable for SSI in the State of Texas. If a person receives
even $1 of SSI, they are typically eligible for Medicare right away.
Definition of Disability
Disability is defined as the “inability 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(a),
416.905(a) (emphasis added).
Procedural Process
• Initial Application Stage
• Reconsideration Stage (Except Prototype States- Alabama, Alaska, California (Los
Angeles North and Los Angeles West Branches only), Colorado, Louisiana,
Michigan, Missouri, New Hampshire, New York, Pennsylvania)
• Request for Hearing
• Appeals Council
• Federal District Court
Every person has the right to be represented by an attorney or other representative
while pursuing a claim or other rights under Titles II, XVI, and XVIII of the Social
Security Act.
Standard of Proof and Burden of Proof
Preponderance of the Evidence
Rests with Claimant in Steps 1-4 and shifts to the Commissioner at Step 5
The Sequential Evaluation Process
I. The Sequential Evaluation Process
To determine whether an individual meets the definition of disability, in each case, Social Security
applies a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920.
Step 1: Whether the person is engaged in substantial gainful activity (SGA)
Step 2: Whether the person has a severe medically determinable impairment that has lasted for 12
months, expected to last for 12 months or result in death.
Step 3: Whether the claimant’s impairment meet or equal a medical listing
Step 4: Whether the claimant is cable of performing his/her Past Relevant Work (PRW)
Step 5: Whether the claimant is capable of performing any job in the National Economy
• The monthly SGA amount for statutorily blind individuals for 2014
is $1800. For non-blind individuals, the monthly SGA amount for 2014
is $1070. SGA for the blind does not apply to Supplemental Security
Income (SSI) benefits, while SGA for the non-blind disabled applies to
Social Security and SSI benefits.
1. Substantial Gainful Activity (“SGA”)
If a claimant has engaged in substantial gainful activity (SGA), then he or she is not
disabled, without consideration of the severity of impairments (physical or mental). The
decision-maker is not required to continue with the remaining four steps of disability.
a. Employees
Fulltime or part-time work is presumed to be SGA if, in 2014, a claimant earns more than
$1070 per month. Even part-time work can be SGA if earnings are at this level. “Your work
may be substantial even if it is done on a part-time basis or if you do less, get paid less, or
have less responsibility than when you worked before.” 20 C.F.R. §§ 404.1572(a),
416.972(a). The presumptive SGA amount changes each year.
b. Self-Employed
There are three (3) tests for determining whether a self-employed person is engaged in
SGA. 20 C.F.R. §§ 404.1575, 416.975, SSR 83-34. If a claimant meets any of the three tests,
he or she has performed SGA. These tests are not necessarily tied to income. Even if a
claimant has little net income, they may still be denied at step one.
c. Illegal Activity can be considered SGA
Illegal activity (i.e. prostitution, drug dealing, tax fraud, etc.) may be considered SGA. The
work, without consideration of its legality may demonstrate that you are able to work at
the substantial gainful activity level. 20 C.F.R §§ 404.1571, 416.971; see also Corrao v.
Shalala, 20 F. 3d 943, 946-49 (9th Cir. 1994); SSR 94-1c.
d. Unsuccessful Work Attempt (UWA)
Where an individual works at SGA levels six months or less, this does not preclude the
receipt of benefits if the work stops or is reduced below SGA levels due to a physical or
mental impairment. 20 C.F.R. §§404.1574(c), 416.974(c); SSR 05-02.
A work attempt of three (3) months or less is an unsuccessful work attempt if the work
ended or was reduced due to the impairment or due to the removal of the special
conditions related to the impairment that are essential to further performance of work. 20
C.F.R. §§ 404.1574 (c) , 416.974(c); SSR 05-02.
A work attempt of three to six months is an unsuccessful work attempt if the work ended
or was reduced due to the impairment or due to the removal of the special conditions
related to the impairments that are essential to further performance of work; and one or
more of the following apply:
I. The individual had frequent absences from work due to the impairment; or
II. The work was unsatisfactory due to the impairment; or
III. The work was done during a period of temporary remission of the impairment; or
IV. The work was done under special conditions
There must be a significant break after the onset of disability in order for work activity to
be an unsuccessful work attempt (i.e. the person must have been out of work for 30 days,
or forced to change to another type of work). SSR 05-02.
e. Sheltered Employment may not be SGA
If a claimant is earning more than $1070 per month (2014 SGA total), this is generally
deemed to constitute SGA. However, in a sheltered work environment, Social Security
recognizes that a claimant may not be earning the amount being paid. If the claimant is
earning less than $1070 per month, then the work is not SGA. 20 C.F.R. §§ 404.1574(a);
416.974(a); 20 C.F.R. §§ 404.1573 (c), 416.973(c); SSR 84-24.
f. Trial Work Period (TWP)
A trial work period is a period during which you may test your ability to work and still be
considered disabled. A trial work period may not occur less than twelve months after the
alleged onset date. See Barnhart v. Walton, 122 S Ct. at 1272-74. However, if an individual
returns to work before the written decision and more than twelve months from onset, she
or he may become entitled to disability benefits and the work may be protected by the
trial work period even though the work began prior to a finding of disability. 65 Fed. Reg.
42774 (cited in the Commissioner’s Brief on the merits in Barnhart v. Walton, 122 . Ct. 1265
It should be noted that the Social Security Administration does not consider services
performed during the trial work period as showing that the disability has ended until
services have been performed in at least 9 months (not necessarily consecutive) in a rolling
60-month period. In 2013, any month in which earnings exceed $750 is considered a
month of services for an individual's trial work period. In 2014, this monthly amount $770.
This monthly amount will trigger a trial work period.
g. Impairment Related Work Expenses (IRWE)
Work activity may not be SGA once impairment related work expenses (IRWE) are
deducted. In determining whether work activity is SGA, Social Security will subtract the
reasonable cost of certain items and services which an individual needs and use to enable
them to work despite their impairment. 20 C.F.R. § § 404.1576, 416.976. These impairment
related work expenses are only deducted if they are paid by the claimant in a month during
which they are receiving benefits. Some examples are: payments for medical devices (i.e.
cane, wheelchairs, pacemakers, sensory aids, etc.)
2. Severe Impairment
Considered at Step 2 of the Sequential Evaluation process. Here, the decision maker will
consider whether the claimant has a severe medically determined impairment. A severe
impairment (1) is medically determinable and (2) significantly limits the claimant’s ability
to perform basic work activities. If the claim does not have a “severe” impairment, he or
she is not disabled and the analysis will stop at step 2 of the adjudicatory process. 20 C.F.R.
§§ 404.1520, 416.920.
A medically determinable impairment is defined by the Social Security Administration (SSA)
as “an impairment that results from anatomical, physiological, or psychological abnormalities that
can be shown by medically acceptable clinical and laboratory diagnostic techniques.” The Social
Security Administration will not approve disability payments based on symptoms alone, without
confirmation by clinical or laboratory findings. 20 C.F.R. §§ 404.1508, 416.908. Once the claimant
establishes the existence of a medically determinable impairment, symptoms arising from the
impairment, including pain, must be evaluated in determining whether the impairment causes
significant limitations. 20 C.F.R. §§404.1529, 416.929. Only an acceptable medical source may
establish the existence of a medically determinable impairment. 20 C.F.R. §§ 404.1513(a);
416.913(a); SSR 06-03p.
The claimant must show that the impairment or combination of impairments “significantly
limits his or her physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520 (c),
416.920(c). Basic work activities include “the abilities and aptitude necessary to do most jobs.”
They include physical functions (such as walking, standing or sitting); capacities for seeing, hearing
and speaking; understanding, carrying out and remembering simple instructions; use of judgment;
responding appropriately to supervision, co-workers, and usual work situations; and dealing with
changes in a routine work setting. Id. Keep in mind that the impairment must last for a period of
twelve months. An ALJ must find that an impairment is severe if it has more than a slight impact on
a claimant’s ability to function. See 20 C.F.R. §§ 404.1521, SSR 85-28, Bowen v. Yuckert, 482 U.S. 137,
153-54 (1987). If the threshold finding and durational 12 month requirement are met, then Social
Security will continue to step 3 of the sequential evaluation process.
Considered at step 3 of the Sequential Evaluation Process. The decision maker will
consider whether the claimant’s impairment or combination of impairments, meets
or equals one of the listings at 20 C.F.R. Part 404, Subpart P, App.1. The listings
categorize impairments by affected body systems. A claimant may meet a listing if
each of the elements or findings are established by medical documentation. If a
claimant is found to meet or equal a listing, Social Security will continue to step 4 of
the adjudicatory analysis.
Considered at step 4 of the Sequential Evaluation Process. However, prior to this finding, the
decision maker must determine the claimant’s “residual functioning capacity” (RFC). An RFC is the
most a claimant can do, despite his or her impairments. The claimant must have the physical and
mental ability to meet the demands of the established RFC, eight hours a day, five day a week. 20
C.F.R. §§404.1545, 416.945; SSR 96-8p.
After a claimant’s RFC has been established, the decision maker must determine whether or not the
claimant has the capacity to perform any of his or her “past relevant work” (PRW). Past relevant
work is work that the claimant has performed with in the past 15 years that was substantial gainful
activity, and that lasted long enough to learn how to do it. 20 C.F.R. §§404.1565, 416.965.
Social Security should consider limitations alleged by the claimant and also those supported by the
record. If the claimant is physically limited, Social Security will determine whether he or she can
perform the requirements of sedentary, light, medium or heavy work as defined by the regulations.
20 §§ 404.1567, 416.967. This requires a finding of the claimant’s ability to sit, stand, walk, lift,
carry, push and pull on a regular and sustained basis (8 hours a day, 5 days a week). Social Security
will also consider the claimant’s mental limitations, in particular how mental impairments affect
understanding, remembering, and carrying out instructions or responding appropriately to
supervision, co-workers, and work pressures in a work setting. Id.
What is Past Relevant Work (PRW)
Past Relevant work is work that the claimant has performed which meets three criteria:
(1) it was performed within 15 years of the date of adjudication or in (SSDI cases) the date
last insured, whichever is earlier;
(2) it was performed long enough for the claimant to have learned it; and
(3) it was “substantial gainful activity”. 20 C.F.R. §§ 404.1565, 416.965
Once the PRW has been identified, the decision maker will determine whether or not the
claimant can perform that work as performed, or as generally performed. If the claimant
can perform his or her PRW, the analysis ends at this point. However, if the claimant
cannot perform his or her PRW, Social Security will continue to step 5 of the sequential
evaluation process.
The claimant’s ability to perform “any” work is considered at Step 5 of the Sequential
Evaluating Process. It should be noted that the burden of proof shifts to the Social Security
Administration at Step 5.
This burden includes the requirement to consider a claimant’s vocational profile in
determining whether or not a claimant can perform other work. A “vocational profile”
includes claimant’s age, education, work experience and residual functioning capacity. 20
C.F.R. §§ 404. 1560 (c), 416.960(c). The work identified must exist in significant numbers in
the national economy.
Vocational Profiles that automatically result
in a finding of disability
There are two vocational profiles which automatically result in a finding of disability
at step five. A claimant who did not complete the 7th grade or receive a GED, and
has a 35 year history of work in arduous unskilled physical labor will be found
disabled at step five. Also, a claimant who is 55 years old or older with less than a
high school education or GED and no past relevant work is disabled at step five. 20
C.F.R. §§ 404.1562, 416.962.
Medical Application of Medical-Vocational
If a claimant’s vocational profile is inconsistent with the two profiles resulting in an
automatic finding of disability at step 5, Social Security will evaluate whether there are jobs
which exist in significant numbers in the national economy.
The decision maker will refer to the Medical-Vocational Guidelines (20 C.F.R. §§ 404
Appendix 2, Subpart P), which are referred to as the “grid rules”. The Grid Rules are a table
of guidelines that assists a decision maker is making disability determinations. The grid
rules consider a claimant’s vocational profile (age, education work experience and residual
functioning capacity). At step 5, a vocational consultant or expert will normally provide
testimony when the claimant’s characteristics do not exactly match a grid rule.
The vocational profile applies at Step 5 to determine whether or not a claimant is able to
make adjustments to other work. The Grids are considered a “framework” for disability
decision making. If the claimant’s “vocational profile” is the same as a rule in the grid, that
rule “directs a conclusion” as to whether the person is disabled or not disabled. Appendix
2, §200.00(a); 20 C.F.R. §§404.1569, 416.969. The decision maker will determine which
table in Appendix 2 is applicable based on the claimant’s residual functional capacity for
sedentary, light or medium work.
AGE: 20 C.F.R. §§404.1565, 416.965
 49 years old or younger:
 50-54 years old:
 55-59 years old:
 60+
Younger Individual
Closely approaching advanced age
Advanced age
Closely approaching retirement age
Education: 20 C.F.R. . §§404.1564(b)
 Illiterate
The inability to read or write
 Marginal Education
Generally a sixth grade education
 Limited Education
Generally 7th – 11th grade education
 High School Education
High School Diploma, G.E.D. or above
**Testing may show ability lower than formal education. SSR 83-11
Work Experience
Work experience is based on past relevant work. Claimant’s work skills are classified in
three different categories.
 Unskilled work: a job that requires 30 days or less to learn (SVP1-2)
 Semi-skilled work: Requires 30 days to 6 months to learn (SVP 3-4)
 Skilled work: Requires 6 months to 4 years to learn (SVP 5-6)
 Highly skilled: Requires 4-10 years to learn (SVP 8-9)
20 C.F.R. §§404.1568;416.968;SSR-84-41. An SVP is the Specific Vocational Preparation
which establishes the timeframe by which it takes to acquire skills associated with a job
title. The SVP is identified by the Dictionary of Occupational Title (DOT), which is published
by the Department of Labor.
At step 5 of the sequential evaluation process, the decision maker may have to
determine whether or not the claimant has acquired transferable skills.
Transferability means applying work skills which a person has demonstrated in
vocationally relevant past jobs to meet the requirement of other semi-skilled or
skilled jobs. Once the decision maker has established that a claimant has
transferable skills, he or she must clearly name those skills, specify what
occupation the skills transfer from and what occupations the skills transfer to.
It should be noted that skills cannot transfer from unskilled occupations.
Table No. 1- Residual Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Word as a
Result of Severe Medically Determinable Impairment (Modified version of sedentary grid (201.01-201.06 only) *
* There are a total of 23 sedentary grid rules
Previous work
Advanced age Limited or less
Unskilled or none
Skilled or semiskilled—
skills not transferable 1
Skilled or semiskilled—
Not disabled
skills transferable 1
High school graduate or more—does not provide for direct
Unskilled or none
entry into skilled work 2
High school graduate or more—provides for direct entry
into skilled work 2
Not disabled
High school graduate or more—does not provide for direct Skilled or semiskilled—
entry into skilled work 2
skills not transferable 1
Disability Determination for Adults
(list is not exhaustive)
CODE OF FEDERAL REGULATIONS (20 C.F.R. ??404 et seq. and ??416 et seq. are
employees to administer Social Security and Supplemental Security Income)
HALLEX (Hearings, Appeals, and Litigation Law Manual)
Relevant statutes, regulations, and rulings are available at the Social Security