SOCIAL SECURITY DISABILITY - THE LEGAL PROCESS
An individual is eligible to receive Social Security disability benefits
when the person is unable 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.A. Section 423(d)(1)(A).
The claimant must "...not be able to do his previous work, and cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for work." 42 U.S.C.A. Section 423(d)(2)(A).
If your Social Security disability claim is denied and you appear before a US Administrative Law Judge (ALJ), the regulations stipulate a 5 step process which must be followed sequentially. 20 CFR 404.1520.
The five steps are as follows:
1) Whether the claimant is currently engaged in substantial gainful activity (SGA). SGA is defined in 2015 as earning at least $1,090 per month (gross). If not engaged in SGA, the process continues to step 2.
2) Whether the claimant has a severe impairment that can be medically determined? If so, continue to step 3.
3) Whether the impairment meets or equals a listed impairment in Appendix I, Subpart P of 20 CFR Part 404? If not, the ALJ must determine the claimant's residual functional capacity (RFC), which is the most the claimant can do in spite of his impairment(s).
4) Whether the impairment prevents the performance of past relevant work (PRW); which is defined as work performed in the past 15 years (and there other stipulations). If the claimant is found unable to perform any of his past relevant work, the case proceeds to the final, critical step.
5) Whether the impairment(s) prevent the claimant from performing any other work (meaning all other work) which exists in the national economy?
Satisfying Step 3 establishes a prima facie disability. If the claimant meets or equals a listing he is disabled on the face of it and is entitled to disability benefits under the Social Security Act. If no Listing is met, the process continues to--
Step 4: Can the claimant perform any of his past relevant work? Also by Step 4, a residual function capacity must be established--in other words, what is the maximum that the claimant can do? At the final Step 5, it must be established whether there is "any other work" that the claimant can perform.
At step 5, the burden of proof shifts to the Commissioner of Social Security, who must show that some work exists in substantial numbers in the national or regional economy that the claimant could perform, considering his age, education, residual function capacity and past work experience. 20 CFR 404.1520(f).
How does Social Security "prove" that there are other jobs in the US economy that a claimant can do? By calling a vocational expert as a witness. The judge will present the vocational expert with a series of hypothetical questions, with hypothetical physical and/or mental restrictions. If the expert testifies that there are jobs that the claimant can perform, Social Security will consider itself to have met the burden of proof at step 5. Most unsuccessful cases, in my experience, are lost at step 5.
It is extremely important for the claimant to establish clearly and early in the process:
There are challenges that can be made to the vocational expert's testimony; however, a claimant generally does not know how to make a successful challenge. This is one way in which an experienced Social Security disability advocate or attorney may prove useful. My view is that a claimant who goes to a hearing unrepresented will not get the counsel he may need to win his case. That is not to say that anyone wants to cheat him or deny him justice. But the truth is, the judge is not there to be the advocate for the claimant nor to plead his case for him. And if the claimant does not know how to plead his case, legally, he is in peril of losing his benefits.
If there is a Social Security disability hearing in your future, please get professional help (and get it in time for your case to be adequately prepared). Remember that an advocate or attorney cannot charge you a fee unless you win. Even then, you cannot be charged a fee unless you receive retroactive benefits or "back pay."
The claimant must "...not be able to do his previous work, and cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for work." 42 U.S.C.A. Section 423(d)(2)(A).
If your Social Security disability claim is denied and you appear before a US Administrative Law Judge (ALJ), the regulations stipulate a 5 step process which must be followed sequentially. 20 CFR 404.1520.
The five steps are as follows:
1) Whether the claimant is currently engaged in substantial gainful activity (SGA). SGA is defined in 2015 as earning at least $1,090 per month (gross). If not engaged in SGA, the process continues to step 2.
2) Whether the claimant has a severe impairment that can be medically determined? If so, continue to step 3.
3) Whether the impairment meets or equals a listed impairment in Appendix I, Subpart P of 20 CFR Part 404? If not, the ALJ must determine the claimant's residual functional capacity (RFC), which is the most the claimant can do in spite of his impairment(s).
4) Whether the impairment prevents the performance of past relevant work (PRW); which is defined as work performed in the past 15 years (and there other stipulations). If the claimant is found unable to perform any of his past relevant work, the case proceeds to the final, critical step.
5) Whether the impairment(s) prevent the claimant from performing any other work (meaning all other work) which exists in the national economy?
Satisfying Step 3 establishes a prima facie disability. If the claimant meets or equals a listing he is disabled on the face of it and is entitled to disability benefits under the Social Security Act. If no Listing is met, the process continues to--
Step 4: Can the claimant perform any of his past relevant work? Also by Step 4, a residual function capacity must be established--in other words, what is the maximum that the claimant can do? At the final Step 5, it must be established whether there is "any other work" that the claimant can perform.
At step 5, the burden of proof shifts to the Commissioner of Social Security, who must show that some work exists in substantial numbers in the national or regional economy that the claimant could perform, considering his age, education, residual function capacity and past work experience. 20 CFR 404.1520(f).
How does Social Security "prove" that there are other jobs in the US economy that a claimant can do? By calling a vocational expert as a witness. The judge will present the vocational expert with a series of hypothetical questions, with hypothetical physical and/or mental restrictions. If the expert testifies that there are jobs that the claimant can perform, Social Security will consider itself to have met the burden of proof at step 5. Most unsuccessful cases, in my experience, are lost at step 5.
It is extremely important for the claimant to establish clearly and early in the process:
- the kinds of work he has performed in the past 15 years and all of the physical and mental requirements of each job (standing, walking, sitting, lifting, bending, judgment, concentration, etc.).
- the types of impairment he has and the severity of each impairment.
- how each impairment limits the claimant's ability to do work related activities: standing, walking, sitting, reaching, bending, lifting, concentrating, remembering, etc.
There are challenges that can be made to the vocational expert's testimony; however, a claimant generally does not know how to make a successful challenge. This is one way in which an experienced Social Security disability advocate or attorney may prove useful. My view is that a claimant who goes to a hearing unrepresented will not get the counsel he may need to win his case. That is not to say that anyone wants to cheat him or deny him justice. But the truth is, the judge is not there to be the advocate for the claimant nor to plead his case for him. And if the claimant does not know how to plead his case, legally, he is in peril of losing his benefits.
If there is a Social Security disability hearing in your future, please get professional help (and get it in time for your case to be adequately prepared). Remember that an advocate or attorney cannot charge you a fee unless you win. Even then, you cannot be charged a fee unless you receive retroactive benefits or "back pay."
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