Medical Malpractice Attorneys

So You Need to File for Social Security Disability or Supplemental Security . . .What Next? Part Two

Determining Disability

Now that we have determined the types of social security programs that are available, how does the disability determination happen?

The Social Security Administration determines whether or not an adult is disabled by following a five step process.  A person can be found disabled at either question 3 or question 5, but each question has to be addressed in order.

Question 1-Are You Working?

The first question is whether you are working.  Work is defined as “engaging in substantial gainful activity.”  If you are earning over the level considered “work”, SSA will not look at whether you have any medical conditions which may limit your activities.  As with most things, there can be exceptions to this rule.

Substantial gainful activity generally means working for pay at a gross rate of $1,130 per month in 2016 (the amount changes each year).  This is the amount SSA will look at to determine if you are working.

BE AWARE – Receiving unemployment benefits may also affect your eligibility.  When you are receiving unemployment, you certify that you are ready, willing and able to work.  When you apply for DIB or SSI, you are stating that you are unable to work.

Question 2- Do you have a Severe Impairment?

If you have not worked above the level considered “substantial gainful activity” since the date you claim to be disabled, SSA moves to question 2.  Question 2 is whether you have a severe impairment.  If you do not, the questions will end and you will not be found disabled.

A “severe impairment” is defined as a medical condition (either physical or mental) which has affected, or is expected to affect, your ability to work for at least one year.  In practice, at this stage of the process, the term “severe” does not have its common meaning.  Severe means that it limits your ability to perform your job.  The example we use is that Debra has psoriasis on her hands.  Sometimes, this limits her ability to type and write.  She is being treated for the condition by a doctor (key).  Even though this does not prevent her from working, this is a severe impairment.

Claims rarely fail at question 2 as long as you are receiving current medical care for your conditions.

Question 3- Do your problems meet or equal one of the Listing of Impairments?

things to know before applying for social security benefitsIf you have a severe impairment, the next question is whether your impairment meets or equals one of the Listings of Impairments.

The Listing of Impairments is a set of regulations setting out many medical conditions, the signs and symptoms of these conditions, and the severity needed to satisfy the “Listing.”

Even though you may have a diagnosis of one of the medical conditions found in the Listing of Impairments, this does not mean that you are disabled.  In addition to having the diagnosis, you also must meet the very specific criteria that follow the given condition.  Social Security’s listing of impairments can be found at http://www.ssa.gov/disability/professionals/bluebook/AdultListings.htm

To give you an example, here is the listing for spine disorders:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);

OR

B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;

OR

C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.

As you can see, it is not enough to have a spine disorder, a herniated disc, or degenerative disease.  In addition to having one of these findings, you must also meet the other criteria.  For instance, you only satisfy Listing 1.04A if you have a herniated disc/degenerative disease and evidence (usually an MRI) showing compromise of the nerve root or the spinal cord.  Additionally, you would also need to produce examination findings, from a doctor, where there is anatomic distribution of pain, limited range of motion, motor loss (or muscle weakness), sensory or reflex loss, and a positive straight leg raise (for the lower back).

Sometimes, it is possible to show that your overall health equals the Listings.  This generally means that you have very similar problems to those in the Listing of Impairments and that those health problems cause a very similar effect on your ability to work.  Usually, a medical expert is needed to find that someone equals a Listing.

If you meet or equal one of the Listings, then you will be found disabled at Question 3 of the process.

If your condition does not meet or equal a listed impairment, you move on.  You proceed to question 4.

Question 4- Are you able to perform any of your past relevant work?

med-1If you are able to perform any past relevant work, you will not be found disabled.  Past relevant work means a job that you performed on a sustained basis (long enough to learn the job- usually at least three or four months) at the level of “substantial gainful activity” (see Question 2) within the last 15 years.

When making this decision, SSA will look at how you actually performed the job, and at how the job is generally performed within the national economy.

Be careful when completing forms for SSA that you do not exaggerate what you did.  You need to be honest about the job you performed and how you performed it.

If SSA finds that you can perform your past relevant work, you will be found not disabled.  If, on the other hand, SSA finds that you cannot perform any of your past relevant work, you move onto Question 5.

Question 5- Are there any other jobs which exist in the national economy which a person with your limitations can perform?

The question here is whether there are a significant number of jobs which exist in the national economy for a person with your health restrictions, work experience and age.  This is usually done in the form of hypothetical questions to a vocational expert.

SSA will decide what these health restrictions are based on your medical records, your testimony, and any arguments made on your behalf by your attorney.  At this question, it is irrelevant whether any of these jobs are actually available.  The only question is whether these jobs exist.  In other words, it does not matter whether anybody is hiring.

The hypothetical questions should include the effects of all your medical problems.  It is important to have an attorney familiar with the process so he or she can make sure the proper questions are asked.

At this step in the process, your age can be a major factor.

Why does Social Security consider my age in determining whether I am disabled?

If you are under age 50, the question is whether any jobs exist in significant numbers that you can perform.  If yes, you will be found not disabled.  Even if you have to alternate between sitting and standing, there will often be jobs which exist which you can perform.  What is important is how your medical problems affect your ability to maintain attention, show up for work on a regular basis, and perform your job duties.

At age 50, the rules change.  If you are over 50, unable to perform any of your past work, you have no transferable work skills, and you can only perform a sitting down job (lifting no more than 10 pounds frequently and sitting 6 out of 8 hours per day); you can be found disabled.

At age 55, the rules change again.  If you are over 55, unable to perform any of your past work you have no transferable skills, and you can only perform light work (lift 20 pounds occasionally, 10 pounds frequently, stand or walk 6 hours per day); you can be found disabled.

Most disability claims are decided at this question.  That is why it is so important to make sure that SSA or the Administrative Law Judge (ALJ) has all the information needed to ask the right hypothetical questions.  You need to make sure you provide medical evidence of your disabling problems.

In our next installment, we’ll cover types of evidence that can be used for your disability claim.

Do you have a questions that can’t wait? Contact us today.

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