OLDER WORKERS AND DISABILITY

The Grid Rules favor older workers in Social Security disability cases.  Grid Rules are the Medical-Vocational rules found in Appendix 2 of the "disability manual."  They combine a worker's age, education, exertional level and previous work experience to direct a finding of "disabled" or "not disabled."  As an individual ages, he or she is less adaptable to new unskilled work.  The Grid Rules are, therefore, more likely to find an older person disabled.

Let's take the illustration of an individual who is in the advanced age category (age 55 or over), has limited education (7th grade or below), has no past relevant work experience or only unskilled work experience, and is limited to sedentary level work.  Grid Rule 201.01 directs a finding of "disabled."

Let's take the same individual who is a "younger individual" (under age 44), with the same criteria used above.  He has a limited education (but communicates in English and is literate),  has no past relevant work experience or has done only unskilled work, and is limited to sedentary work.  Grid Rule 201.24 directs a finding of "not disabled."  The only difference in the two illustrations is age.

Keep in mind, however, that the Grid Rules do not cover non-exertional limitations such as psychological impairments.  Also, a combination of impairments may exist so that a person can be found disabled without meeting a Grid Rule.  An example would be a person who cannot even perform sedentary level work because of severe physical and/or emotional impairments.  If he/she is below sedentary work level, the Grids do not apply because there is no work he/she can do.   

What Qualifies as Past Relevant Work?

In order to be found disabled, you must show that you cannot perform your past relevant work (PRW).  If you can perform any of your past relevant work, then you will be found not disabled.  Here are the requirements for work to be considered "PRW":

1. The work was performed during the last 15 year period.
2. It was performed at substantial gainful activity level; in 2013 SGA level is gross earnings of at least $1,040 per month.  SGA was less in 2012, etc.
3. The work was performed long enough for the claimant to learn how to do it. If you only worked at a job for 3 or 4 months, it is likely that the judge will determine that isn't long enough to learn the job.

If it is determined that you cannot do any past relevant work, the consideration moves to the final step - can you do any other work that exists in significant numbers in the local or national economy?  If the answer is "yes," you will be found not disabled.

It is also important to understand whether your past relevant work was skilled, semi-skilled or unskilled and whether there are any transferable skills.   

HOW TO WIN A HEARING

If you read internet blogs about Social Security disability you will find that everyone has a theory about how to win a disability hearing.  The truth is, there are a lot of variables in hearings.  One variable is the representative.  One representative may find a particular tactic works very well for him, while another representative does not find that tactic helpful.

Another variable is the judge.  Some judges will want the representative to "carry the ball" at the hearing - that is, ask most of the questions, explain the theory of the case, cover the medical history, etc.  Other judges will ask most of the questions, explain the issues in the case and restrict how much the representative gets to say.

In my experience, effectiveness at disability hearings boils down to a few basics.  One, prepare well and get to know the claimant.  Two, know the medical and vocational evidence.  Three, present a forceful and logical theory of why the claimant is disabled, supported by objective medical evidence.

Click here for information on Social Security disability 

 Established in 1979, the National Organization of Social Security Claimant's Representatives (NOSSCR) is a professional association of over 4,000 attorneys and other advocates who help individuals with disabilities obtain Social Security and Supplemental Security Income benefits.   To be eligible for disability benefits, individuals must be unable to engage in "substantial gainful activity" because of a medically determinable physical or mental impairment which can be expected to result in death or has lasted for at least 12 months. NOSSCR members represent these individuals with disabilities in legal proceedings before the Social Security Administration and in federal court.

DISABILITY HEARINGS - WHY AN ADVOCATE IS WORTH HIS WEIGHT IN GOLD

A disability advocate can help you win a Social Security disability claim.  What does he/she know that you may not know?  Plenty.  Here are a few examples, just as they routinely come up during Social Security hearings:

1. What was the exertional level of your past relevant work, according to the DOT (the Dictionary of Occupational Titles).
2.  Does your Residual Functional Capacity prevent you from performing any of your past relevant work?
3. What was the skill level of your past jobs?
4. Did you learn any skills transferable to other types of work?
5. Do you have any non-exertional limitations that limit the work you can perform?
6. If your main medical evidence is from a nurse practitioner or a chiropractor, is it admissible and what weight may it be given under Social Security law?
7. Social Security sent you for a "consultative examination" with one of their doctors who says that you have no severe impairments; must you accept this opinion?
8. Your treating doctors says you have impairments that are more severe than Social Security's doctor has found.  Which doctor's opinion must be given more weight-- your doctor's opinion or the Social Security doctor's opinion?
9.  You have a history of alcohol (or drug) abuse and Social Security law says that abuse may not be used as the basis for disability.  Can you be denied benefits because of drug or alcohol abuse?  What is the legal test?
10. The judge concludes that you can perform most, but not all, of the basic job functions required of sedentary unskilled work.  Is that good enough to find that you are able to work, or must you be able to perform all of the job functions of sedentary work? 
11. Is your "occupational base" significantly eroded due to your inability to get along with coworkers, supervisors and the public?  Does 20 CFR 404.1521(b)(5) support you?
12. The consulting physician states that you would be unable to walk one block at a reasonable pace over rough or uneven surfaces.  Is this sufficient to show that you do not ambulate effectively under Appendix I, Section 1.00?

A qualified disability representative or advocate knows the answers to those questions before walking into the courtroom.  And he/she will know how to argue the appropriate points before the judge who will make a decision on your case.  The representative will also be skilled at cross examination of the vocational expert.  In fact, well before the hearing occurs, your representative will have prepared a detailed legal brief in which the pertinent legal arguments have been stated, laws cited, and conclusions drawn. 

Under no circumstances should a claimant wander into a disability hearing unrepresented.  It is usually the death knell of the claim.  Good representation is not expensive.  It is priceless!  And remember, you don't even pay a fee unless you win back pay!

DISABILITY - WHO CAN FILE FOR BENEFITS?

Under Title II, or SSDI - you may be entitled to disability benefits if you

1. worked long enough to be covered for SSDI,
2. have not yet reached your full retirement age,
3. have been or expect to be unable to work for 12 consecutive months, or have been diagnosed with a condition expected to result in death; 
4. suffer from a medically determinable condition that prevents you from performing past relevant work or any other work.

 Social Security will consider medical evidence to determine whether you meet their medical requirements for disability.  It will also look at vocational evidence.  It will consider your age, past work history, education and residual function capacity (what you can still do in spite of your condition).

A person is generally found disabled if (s)he cannot perform any of his/her past relevant work and can perform no other work as it generally exists in the national or local economy.  This phrase "no other work" is troubling because it is somewhat difficult to prove that an individual cannot perform any full-time work.  (Technically, Social Security must prove that the individual CAN perform some other type of work, but this is still the most difficult requirement in a disability claim).

Let me use an illustration of how "other work" can play into a disability claim. Fred was an unskilled laborer for a construction company.  This is his only past relevant work.  His past work has an exertional classification of "very heavy," which required lifting and carrying 100 pounds occasionally and 50 pounds or more frequently.  Fred can no longer meet this level of exertion, so he can no longer work as an unskilled construction laborer.  However, this does not necessarily mean that Fred is disabled.

This gets Fred past Step 4 in the 5-Step sequential evaluation.  Can he perform any of his past relevant work?  No.  So, on to Step 5:  Is there any other work that he may still be able to perform?  Let's say that Fred's Residual Functional Capacity (RFC) is found to be "light exertion level."  At this level, a worker would only need to life 20 pounds occasionally and up to 10 pounds frequently.  The judge will ask the vocational expert whether any other work exists that Fred could do (at the light exertional level).

Let's say that, yes, Fred can perform one of several jobs available in the national or local economy--all of which are classified as "light" exertional level jobs.  If that is true, then Fred is not disabled under Social Security rules.  Since he can perform "light work," he can also perform "sedentary" work--which is even easier.  This may represent a large number of jobs in the national economy that Fred can perform.  (It doesn't matter whether Fred can actually get one of these jobs, or even if one of the jobs is open; it only matters that the jobs exist and that Fred could do one of these jobs if it were open, if he could find it, and if he could get hired).

I hope you are beginning to see why going into a disability hearing without the help of a qualified representative is foolhardy.  Most people are simply not familiar enough with vocational rules to argue with a vocational expert--who will most likely testify at your hearing.  If you have a disability hearing in your future, take a good representative with you.  Good representation is not expensive - it's priceless!

DISABIILTY - SSDI vs. SSI

SSDI stands for "Social Security Disability Insurance."  Within the profession it is often called "Title II," or just "disability."

SSI stands for "Supplemental Security Income," a different program which is also administered by the US Social Security Administration.  SSI is often called "Title XVI" benefits.  Here is a skeleton outline of the two programs which may help readers better understand the difference.

SSDI.  Workers are insured for disability by the US government if they have worked enough quarters and paid in a sufficient amount of federal withholding tax (part of what is called FICA tax, deducted from your payroll and matched by your employer).  If you haven't worked enough you are not enrolled in SSDI or Title II and cannot receive benefits when you become disabled (unless you can qualify as a widow/widower or dependent under another wage earner's work record). There are no income or means restrictions on SSDI.  Simply put, a person does not have to be poor to qualify for SSDI.  However, a person may not be working at "substantial gainful activity" while drawing SSDI benefits.  In 2013, "substantial gainful activity" is gross monthly income of at least $1,040. (Most non-earned income, such as pensions, retirement or investment income will not count as being substantial gainful activity). The amount of benefit available depends on the claimant's work history - but the monthly benefit is generally more than the SSI maximum.  Most claimants are better off if they can file an SSDI claim under "Title II."

SSI or Title XVI.  This program is best understood when thought of as a type of federal welfare for individuals with very limited income and limited financial resources.  Unlike SSDI, SSI does not require any work history to qualify.  Even children may qualify for SSI.  However, there are strict income and resource limitations to qualify for SSI. Individuals must not have total resources of more than $2,000 and couples may not have more than $3,000.  This is not income limits - but resource limits.  Resources include cash, bank accounts, cash value in life insurance policies, stocks, bonds, real estate (excluding your home and the property it sits on), and other investments.  The value of one automobile will be excluded and there are some other exclusions.  The maximum federal SSI benefit for 2013 is $710 per month for an individual and $1,066 for a couple.  In some cases, it is possible to qualify for both SSDI and some amount of SSI at the same time.  This would occur when the benefit from SSDI is less than the SSI maximum benefit (less than $710 per month).  So, SSI is offset by benefits from SSDI.  

The medical requirements for SSDI and SSI are the same.  For both programs, an individual must have a medically determinable impairment that is severe enough to prevent work for 12 consecutive months.  In the case of a dependent (widow, widower or child) - the dependent may qualify under the parents' disability.  Children who are disabled will be considered subject to the "household income."