THE "OTHER WORK" RATIONALE


In Alabama, slightly less than 30 percent of Social Security disability claims are approved at the first try--the application level. The other 70 percent get denial letters.

Many of those denial letters will state something like this: "We realize that you cannot perform any of your past work. However, there is other work that you can do."

Social Security must first determine whether an applicant can perform any of his or her past relevant work. They look at work experience for the past 15 years. If they conclude that you cannot do any of your past work, they must ask the question: "Is there any other work that he/she can do, based on his or her residual functional capacity, age, education and work experience?" If there is "other work," then the claimant will be found NOT DISABLED.

Many of my clients find that humerous (and tragic at the same time). They say there is work I can do but I can't find any work!" In the Code of Federal Regulations, the Government spells out situations that "don't count" when a claimant tries to find work unsuccessfully. It "doesn't count" if your inability to work is due to
  1. Your inability to get work.
  2. Lack of work in your local area.
  3. The hiring practices of employers (aka, No one will hire you)
  4. Technological changes in the industry in which you have worked.
  5. Cyclical economic conditions (recessions, depressions).
  6. No job openings for you.
  7. You woud not actually be hired to do work you could otherwise do. (My favorite)!
  8. You do not wish to do a particular type of work.
Those are real statements from CFR 404.1566, although I have added a couple of caustic comments of my own to numbers 3, 5 and 7.

In short, it's not whether you can GET a job that counts. It's whether there are any jobs you might be able to do. Thus, Social Security decision makers work very hard to make their disability program quite distinct from an unemployment program. They don't care if you can't find work; it only matters that you are unable to work.

In putting together a successful disability claim, I find it necessary to consider both medical and vocational factors. There must be a severe medical impairment (physical or psychological), and that impairment must result in the inability to perform both past relevant work AND "any other" work.

In my opinion, that's why unrepresented claimants run into trouble at the hearing level. They may be very able to explain why they cannot do their past work. But when the vocational expert testifies that they could work as telephone solicitors, security guards, or tasters in pie factories, the case falls apart. (That is Step 5 in the sequential process, incidentally).

An experienced claimant's representative who has faced judges and vocational experts frequently may be able to steer around these challenges and still get your benefits. Trying to do it yourself is a lot like steering an ocean liner through iceburg fields. If one doesn't get you, another one probably will.


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