Disability and Related Issues
Anthony J. DeLellis
1565 Hotel Circle South, Ste 370
San Diego, CA 92108
619-278-0900
ajd@delellis.com
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SOCIAL SECURITY DISABILITY
Disability: 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. 42 U.S.C. 423(d)(1)(A)
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Physical or Mental Impairment: An
impairment that results from anatomical,
physiological or psychological
abnormalities which are demonstrable by
medically acceptable clinical and
laboratory diagnostic techniques.
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The Social Security Act sets a
“Hypothetical Tone” for disability
determinations.
The SSA will not consider the availability of
work in the area where the claimant lives, job
vacancies or whether the individual claimant
would be hired.
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Five Step Sequential Evaluation
1. The Claimant is not engaging in “substantial gainful activity” (SGA);
and
2. The Claimant has a “Severe” impairment; and
3. The impairment meets or “equals” one of the impairments in the
regulations known as the “Listing of Impairments”; or
4. Considering the Claimant’s “residual functional capacity” (RFC), the
Claimant is unable to do “past relevant work”; and
5. Other work with the claimant’s RFC, considering age, education and
work experience, does not exist in the national economy in
significant numbers.
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1. Substantial Gainful Activity
Work must be both “substantial” and “gainful”.
Gainful work for 2006 was $870 per month and $900 per
month for 2007. Self Employed work is “gainful” if it
is the kind of work usually done for profit, regardless if
there is a profit or loss.
Substantial work means that the claimant is able to do the
ordinary tasks of the job without special assistance or
the claimant is of “little or no use” to the employer.
This is referred to as a “sheltered work environment”.
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2. Severe Impairment
This step is designed to weed out frivolous claims
involving no medically determinable impairment
or only a “slight” impairment that results in a
“minor” limitation on the ability to work.
Medically determinable impairments are divided
into two categories:
1) slight impairments that are referred to as “nonsevere” impairments and
2) all other impairments that are, therefore,
“severe.”
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1. The regulations require that the impairment
must be continuously “severe.” This precludes
conditions that wax and wane or have periods
of remission followed by active periods.
However if the remission is for short periods
followed by active periods which preclude SGA
then the duration requirement is met.
2. A claimant is not permitted to tack together
unrelated severe impairments to get to the 12
month requirement. 42 U.S.C. 423(d)(2)(a).
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3. Listings of Impairments
A Claimant will be found disabled if the medical
signs, findings and symptoms meet or “medically
equal” one of the disabilities found in the Listing
of Impairments.
If meet or equals a listing, the Claimant will be
found disabled even if he/she is able to do past
work or hypothetically retains ability to do
substantial gainful activity.
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1. Musculoskeletal System.
2. Special Senses and Speech
3. Respiratory System 5. Cardiovascular System
4. Cardiovascular
5. Digestive System
6. Genitourinary Impairments
7. Hematological Disorders
8. Skin Disorders
9. Endocrine System
10. Impairments That Affect Multiple Body Systems
11. Neurological
12. Mental Disorders
13. Malignant Neoplastic Diseases
14. Immune System
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4. Past Relevant Work
1. The Claimant has the burden of proving that he/she cannot
perform any of the work he/she performed in the past 15
years.
2. If can perform PRW, not disabled. The case may be a
winner at Step 5 but cant get there if lose at Step 4.
3. The Past Work must have been Substantial Gainful Activity.
4. Must have been performed long enough to learn that work.
Each job is defined in the Dictionary of Occupational Titles
and is given a specific SVP number from 1 to 8. Unskilled
jobs have an SVP of 1-2 and takes 30 days to learn. Semi
Skilled jobs have an SVP of 3-4 and takes 30 to 90 days to
learn. Skilled jobs have an SVP of 5-9 and require 6
months up to 10 years to learn.
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5. In evaluating a claim, I look through the claimant’s work
history and determine which is the easiest job that they
performed. The burden is to show what medically
determinable impairments preclude him or her from
performing this work now.
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5. Other Work Does Not Exist
If cant do PRW, the issue at Step 5 is whether there are jobs
that exist in significant numbers that the Claimant has the
Residual Functional Capacity to perform.
There are Guidelines known as GRIDS which are used at this
step. The GRIDS take into consideration the claimant’s
“exertional limitations”. These are categorized as Sedentary,
Light, Medium or Heavy. They are then combined with the
claimant’s age, education and past work experience to see if
there are jobs that exist in “significant” numbers that the
Claimant can perform. Plugging this information into the
Grids will direct a finding of disabled or not disabled.
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Often there are “Non Exertional” Limitations. If so, the grids
do not work and a vocational expert is needed who can
testify how the impairments either preclude employment or
erode the occupational base of jobs which exist. Non
Exertional limitations include
1. Postural (e.g. alternate sit/stand, elevate legs, balance
problems, difficulty bending, stooping, squatting)
2. Manipulative (e.g. reaching, grasping, handling, fingering)
3. Environmental (e.g. fumes, dust, noise, heights, humidity,
moving machinery)
4. Mental (e.g. difficulty relating to others; remembering or
carrying out simple instructions; inability to maintain
attention or concentration; poor stress tolerance)
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Disability Programs

Social Security Disability Insurance
 Supplemental Security Income
 Widow’s Benefits
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SSDI Requirements

Medical Disability. Use the 5 step sequential
evaluation.
 Must have worked for 20 Quarters out of the last
40 Quarters. Must earn $900 to get credit for a
quarter.
 Earnings Requirement. Must have worked a
minimum number of Quarters throughout their
lifetime. This is usually a number less than 40
Quarters.
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SSI

Medical Requirements. Use the 5 step sequential
evaluation.
 Financial Requirements. Cannot have more than
$2,000 in assets. $3,000 if married. Excludes a
vehicle used to transport to and from medical
visits and principal residence.
 Must be a citizen. If non citizen, must be here
legally since prior to August of 1996 unless here
as a political refugee.
 Income limits apply.
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Widow’s Benefits

Medical Requirements. Use the 5 step
sequential evaluation.
 Must be unmarried
 Must be between the ages of 50 and 60
 Disability must begin before 7 years after
the wage earner’s death.
 If divorced from the decedent, must have
been married for 10 years.
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Retroactive Benefits

SSDI: The successful claimant is entitled to
receive benefits back to the onset date of the
disability up to a maximum of one year
before the Application is filed.
 SSI: The successful claimant is only
entitled to receive retroactive benefits from
the date of the Application.
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Attorney Fees

Set by Statute. 42U.S.C. 406(a)(2)(A)
 25% of Retroactive Award up to a
maximum of $6000.
 Social Security will automatically deduct
the 25% and pay the attorney directly.
 Costs associated with the claim are separate
and a matter of agreement with the client.
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The Hearing and Appeal
Process
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Initial Application: 800-772-1213
Request for Reconsideration: 60 days from first denial.
Hearing with an Administrative Law Judge: Must be
requested within 60 days of Reconsideration denial.
Appeals Council review: Must be requested within 60
days of ALJ denial.
U.S. District Court: Must be requested within 60 days
of Appeals Council Denial.
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