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. Source: www.gov/policy/docs/statcomps/di_asr/2011/sect01.html#chart6 SOCIAL SECURITY ACT 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 Act 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 et.seq. 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. SOCIAL SECURITY DISABILITY INSURANCE (SSDI) • 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. WORK CREDIT REQUIREMENT CHART FOR SSDI Age of Disability Before age 24 24-30 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 31-42 20 credits 20 credits in prior 10 years 43-61 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 SUPPLEMENTAL SECURITY INCOME (SSI) • 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 WHO MAY REPRESENT CLAIMANTS 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 STANDARD OF PROOF Preponderance of the Evidence BURDEN OF PROOF 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 SUBSTANTIAL GAINFUL ACTIVITY • 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. WORK ACTIVITY 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 (2002). 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.) SEVERE IMPAIRMENT 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 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. b. SIGNIFICANTLY LIMITS 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. MEETS OR EQUALS A MEDICAL LISTING 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. IS THE CLAIMANT CAPABLE OF PERFORMING PAST RELEVANT WORK 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. . IS THE CLAIMANT CAPABLE OF PERFORMING PAST RELEVANT WORK 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. IS CLAIMANT CAPABLE OF PERFORMING ANY WORK 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 Guidelines 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. VOCATIONAL FACTORS 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 VOCATIONAL FACTORS 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. TRANSFERABLE SKILLS 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 experience Decision Advanced age Limited or less Unskilled or none Disabled 201.02 ......do ......do Skilled or semiskilled— Do. skills not transferable 1 201.03 ......do ......do Skilled or semiskilled— Not disabled skills transferable 1 201.04 ......do High school graduate or more—does not provide for direct Unskilled or none entry into skilled work 2 Disabled 201.05 ......do High school graduate or more—provides for direct entry into skilled work 2 Not disabled 201.06 ......do High school graduate or more—does not provide for direct Skilled or semiskilled— Disabled entry into skilled work 2 skills not transferable 1 Rule Age 201.01 Education ......do Disability Determination for Adults Source: ssa.gov/policy/docs/rsnotes/rsn2013-01.html#chart1 RESOURCES (list is not exhaustive) FOR THOSE CONSIDERING SOCIAL SECURITY DISABILITY REPRESENTATION SOCIAL SECURITY ACT CODE OF FEDERAL REGULATIONS (20 C.F.R. ??404 et seq. and ??416 et seq. are essential) SOCIAL SECURITY RULINGS ACQUIESENCE RULINGS (AR) PROGRAM OPERATIONS MANUAL SYSTEMS - (POMS is a manual used by SSA 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 Administrations website:www.ssa.gov.