ALABAMA - KNOWN AS A 'STEP 5' DENIAL STATE
When you file a Social Security disability claim in Alabama, the application goes to a state agency in Birmingham known as the Disability Determination Service, or DDS. An examiner at DDS will make the decision as to whether you meet the eligibility requirements for Social Security disability. In 7 out of 10 cases, the answer will be, No - you do not.
If you examine the denial carefully, here's what you will find. DDS followed the 5 Step determination process required by law. I want to explain the 5 steps. Note carefully how Step 5 can be used to deny most disability claims. Here is the process and typically how we see most cases decided at the initial level in Alabama:
Step 1: Is this claimant now working at substantial gainful activity? No. He/she has stopped working.
Step 2: Does this claimant have a severe impairment that could reasonably be expected to display the symptoms that the claimant alleges? Yes, the claimant has one or more severe impairments.
Step 3: Does the claimant meet any Listed impairment? No, the claimant does not meet the criteria for any impairment under 20 CFR Part 404, Subpart P, Appendix 1. (Rarely does a claimant meet a Listing). At this step, the claimant must be assigned a RFC--residual functional capacity, which is the most he/she can do exertionally. The DDS will nearly always assign an incorrect RFC, which is one reason for so many denials. For instance, the claimant may state that she can stand/walk less than 2 hours per 8 hour day. The DDS may assign her an RFC of "light exertion," which assumes she can stand/walk 6 hours out of an 8 hour day.
Step 4: Can the claimant perform any of his/her past relevant work? No, the claimant is not able to perform any of his/her past relevant work. Note, because of Step 5, this does not yet qualify as a disability. So on we go to Step 5.
Step 5: Does there exist in substantial numbers any other work in the local, regional or national economy that an individual of the same age, education and residual functional capacity could perform? Yes, the claimant could perform other work which exists in the local, regional or national economy. (Hence, what we call a Step 5 denial).
In short, the denial in most Alabama disability cases is predicated upon 2 errors made by the state examiner:
Error 1: The disability examiner assigns a residual functional capacity (the ability to do work activities) that is not realistic based on the claimant's physical condition, age, education, etc. Mental impairments may not be adequately considered, either.
Error 2: The disability examiner assumes that jobs exist in large numbers that the claimant would theoretically be able to perform. These jobs would usually be classified as requiring less exertion (less lifting, pushing/pulling, walking, etc.) than the claimant's past work. So, while the claimant cannot do janitorial work any more, she might be able to be a receptionist, telemarketer, garment tagger or egg breaker. Thus, she is "not disabled under Social Security rules" because there is other work that she can do.
Here's the purpose of this rather technical explanation of Alabama disability denials. They are often made in error. They apply the law incorrectly by assuming certain facts to be true which are not true at all. Incidentally, the claimant may have been sent to a doctor by Social Security for a "consultative exam." In 90 percent of cases I've seen, the consulting doctor, under contract with Social Security, will state that the claimant is in much better shape than her other medical records indicate. This consulting doctor's opinion will often be used by the disability examiner at DDS to support a denial of the claim. I recently saw one consulting doctor who noted, "The claimant can get on and off the exam table without any assistance." Seriously. So, look for no help from Social Security's own doctors. (Look for my new article about the faults of consultative examinations).
Bottom Line - Assume that your denial is in error. It probably is. My guess is that around 60 percent of them are made in error. Assume, also, that justice waits for you in a hearing before an administrative law judge. Get a good representative and immediately appeal your denial by asking for a hearing. You have only 60 days from the denial date to appeal. This is crucial. Most awards are won in a hearing, not by application only.
The 3 most important things you can do in Alabama if you have been denied are:
If you examine the denial carefully, here's what you will find. DDS followed the 5 Step determination process required by law. I want to explain the 5 steps. Note carefully how Step 5 can be used to deny most disability claims. Here is the process and typically how we see most cases decided at the initial level in Alabama:
Step 1: Is this claimant now working at substantial gainful activity? No. He/she has stopped working.
Step 2: Does this claimant have a severe impairment that could reasonably be expected to display the symptoms that the claimant alleges? Yes, the claimant has one or more severe impairments.
Step 3: Does the claimant meet any Listed impairment? No, the claimant does not meet the criteria for any impairment under 20 CFR Part 404, Subpart P, Appendix 1. (Rarely does a claimant meet a Listing). At this step, the claimant must be assigned a RFC--residual functional capacity, which is the most he/she can do exertionally. The DDS will nearly always assign an incorrect RFC, which is one reason for so many denials. For instance, the claimant may state that she can stand/walk less than 2 hours per 8 hour day. The DDS may assign her an RFC of "light exertion," which assumes she can stand/walk 6 hours out of an 8 hour day.
Step 4: Can the claimant perform any of his/her past relevant work? No, the claimant is not able to perform any of his/her past relevant work. Note, because of Step 5, this does not yet qualify as a disability. So on we go to Step 5.
Step 5: Does there exist in substantial numbers any other work in the local, regional or national economy that an individual of the same age, education and residual functional capacity could perform? Yes, the claimant could perform other work which exists in the local, regional or national economy. (Hence, what we call a Step 5 denial).
In short, the denial in most Alabama disability cases is predicated upon 2 errors made by the state examiner:
Error 1: The disability examiner assigns a residual functional capacity (the ability to do work activities) that is not realistic based on the claimant's physical condition, age, education, etc. Mental impairments may not be adequately considered, either.
Error 2: The disability examiner assumes that jobs exist in large numbers that the claimant would theoretically be able to perform. These jobs would usually be classified as requiring less exertion (less lifting, pushing/pulling, walking, etc.) than the claimant's past work. So, while the claimant cannot do janitorial work any more, she might be able to be a receptionist, telemarketer, garment tagger or egg breaker. Thus, she is "not disabled under Social Security rules" because there is other work that she can do.
Here's the purpose of this rather technical explanation of Alabama disability denials. They are often made in error. They apply the law incorrectly by assuming certain facts to be true which are not true at all. Incidentally, the claimant may have been sent to a doctor by Social Security for a "consultative exam." In 90 percent of cases I've seen, the consulting doctor, under contract with Social Security, will state that the claimant is in much better shape than her other medical records indicate. This consulting doctor's opinion will often be used by the disability examiner at DDS to support a denial of the claim. I recently saw one consulting doctor who noted, "The claimant can get on and off the exam table without any assistance." Seriously. So, look for no help from Social Security's own doctors. (Look for my new article about the faults of consultative examinations).
Bottom Line - Assume that your denial is in error. It probably is. My guess is that around 60 percent of them are made in error. Assume, also, that justice waits for you in a hearing before an administrative law judge. Get a good representative and immediately appeal your denial by asking for a hearing. You have only 60 days from the denial date to appeal. This is crucial. Most awards are won in a hearing, not by application only.
The 3 most important things you can do in Alabama if you have been denied are:
- Appeal
- Appeal
- Appeal
Comments
Post a Comment