WHAT HAPPENS AT HEARING "STEP 5" AND WHAT IS THE DANGER?

There are 5 "steps" used in determining a Social Security disability case.  Here are the 5 steps, then we want to discuss Step 5:
  1. Is the claimant now working at SGA level?
  2. Does the claimant have a medically determinable severe impairment?
  3. Does the claimant meet a specified Listing?  If not, what is his residual functional capacity or RFC?  (What is the most he can do, even with his impairments)?
  4. Can the claimant perform any of his past relevant work?
  5. Is there any other work that exists in substantial numbers in the local, regional or national economy that the claimant can perform?
Most cases that are lost are lost at Step 5, especially at the hearing level.  Social Security will call a "vocational expert," usually a Vocational Rehabilitation Counselor, to give testimony concerning "other work" that the claimant may still be able to perform.  If it is Social Security's determination that the claimant can still perform "other work," the claim will be denied.

There are many problems with the Step 5 and "other work" determinations.  I have time to mention only a few of them.  Claimants who are facing a hearing should be especially aware of how Step 5 can endanger their claim and potentially be its death knell.

  • The job descriptions are based on the outdated Dictionary of Occupational Titles last published in 1991.  There are dozens of jobs in the DOT that no longer exist in significant numbers in the United States.  These jobs are obsolete.  Example:  garment tagger.
  • There is no accurate or reliable method of determining how many jobs really exist in the US economy based on a DOT code.  The vocational expert often relies on data from the US Census (which can be up to 10 years old) or publications or data bases sold to "estimate" job numbers.  However, the government does not publish or list jobs by DOT codes.  They use an updated code known as an SOC code, which usually contain clusters or groups of jobs representing dozens of DOT codes.  There is no reliable way to extrapolate DOT coded jobs from the larger SOC code grouping.  "Experts" will pretend there is a scientific way of doing so but really there is not.  It is a pure guess. 
  • The expert will usually admit under examination that he/she has no experience in researching how many jobs exist in a particular part of the country, region or state.  One expert told me recently under oath, "To research just the state would require 2, maybe 3 years."  In fact, the job numbers would change hundreds of times before the   survey could be completed.  In the end, we would have a guess.
OK, so the job numbers are invalid.  How do you deal with that?  First, I recommend an objection to the job numbers in the hearing record.  It will be overruled most likely but may lay grounds for an appeal.  Second, I recommend that every attempt be made to provide evidence that precludes the possibility of performing any substantial gainful activity, including sedentary unskilled work--which is usually the common denominator for a denial of a claim. Finally, I recommend that factors such as the claimant's age, past work, skills and education be reviewed carefully to avoid the issue of "other work" when possible.  That is certainly not always possible.  However, as with most other things, prevention is always easier than a cure.

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