Legal Rules

Because it is handy to understand the way lawyers think when you set out on this journey, one chapter in my book is called, “How to think like a lawyer.”  You can find the PDF here.

There are five things we/you have to prove which are contained in: The Five Step Sequential Evaluation Process.  (Social Security lingo.)

Step One:  Is the claimant “working” for purposes of the Social Security Act?

To actually be Work on the Social Security Island, the job must meet the Substantial Gainful Activity (SGA) test. For wage earners there is a specific amount of money that is “substantial.” One dollar less is “not substantial.” Today, the threshold is $2460 for blind individuals and $1470 for everyone else. The activity must be performed on a continuous and sustained basis and performed in the competitive labor market. Let’s break that down a bit.

A person who does nothing and earns more than the threshold amount due to investments (like, $50,000 a month) and is doing nothing else to generate income, is not working for the purposes of the Social Security Act. A person who gets hurt; stops working for six months or less; goes back to work for a month or more; then finally gives up and stops working within six months of their return to work, is not working for purposes of the Social Security Act. The person is eligible for benefits for entire period because it is an unsuccessful work attempt.  A person who is doing something and earning more than the threshold amount for a friend, family or other nice person/company, but only has the job due to the relationship is not working for purposes of the Social Security Act. That person would not be hired by an ordinary employer who can choose workers from the competitive labor market. It is subsidized work. (Ted, a nice guy, pays Sally, who has carpal tunnel, or a bad back or some other thing that stops her from lifting more than 15 pounds) to haul firewood because he likes her and wants to help her out.  Does Sally have the actual capacity to beat out a 25-year-old who can lift and carry 50 pounds every day, all day if the job were open to the general public?)  PRIDE and Goodwill Industries have jobs that are open only to disabled people.  Someone who earns money in that type of job is not working for purposes of the Social Security Act.  Those types of jobs are called, sheltered workshops. Obviously (or not) there is a whole lot more to the concept of work but you’ll have to call if you want to talk about it further.

Step Two:  Does the claimant have “severe medically determinable impairments” for purposes of the Social Security Act?    Think about it this way:  If your mental/psychological condition(s) interfere with your ability to sit/stand/walk/lift/carry/push/pull/manipulate objects and/or your psychological prevents you from keeping up the pace required for the physical or mental task, your impairment is severe. It may or may not be disabling for purposes of the Social Security Act – but your claim has enough merit to continue the process.

But not all physical/mental impairments are created equally. Medically Determinable Impairments are the only ones we care about.  Medically Determinable means it is a recognized medical condition.  Fibromyalgia, for example, has only recently become a “real-thing” in medicine. People knew there was something. Many people reported the same or very similar cluster of symptoms.  But people could not agree what it meant. They couldn’t agree how to diagnose it. Some still do not believe it’s a real thing. However, the American College of Rheumatology weighed in, defined it and decided how to diagnose it. SSA accepted it as a genuine condition. Then the ACR changed how it is diagnosed, but SSA still hasn’t changed its rules on the subject.  If a claimant has a recent diagnosis, not defined by the old criteria, it’s a problem.

Lots of people go to a new doctor and inform the doctor that in the past someone diagnosed them with Fibromyalgia, for example. The new doctor accepts it at face value and does not do their own examination.  To determine that the claimant has Fibromyalgia, we have to provide evidence that a doctor actually did diagnose the condition.  In other words, if it isn’t on paper and in the medical records SSA has, it doesn’t exist.  It is not enough for a claimant to say, “I have pain. I can’t work. Pay me.” There must be evidence of the cause of the pain before SSA will determine there is an underlying medical condition.  In other words, if you haven’t been to a doctor because you hate doctors and never go unless it’s bleeding and on fire, you are not at all likely to prevail.

As a Normal Person, in the real world, I get it. I can know for a certainty that a person can’t work.  But if that person doesn’t have medical records, I will never be able to prove it.  We will be kicked off Social Security Island.

Step Three:  Does the claimant’s impairment(s) meet or equal a “Listed Impairment” recognized in the Social Security Act?  If yes – the claimant wins.  If no – the claimant continues to Step Four. Listings for adults can be found here https://www.ssa.gov/disability/professionals/bluebook/AdultListings.htm Listings for children can be found here https://www.ssa.gov/disability/professionals/bluebook/ChildhoodListings.htm.  Many people have come into see me and have said in loud and angry voices they should have been approved at the initial, reconsideration or hearing level because they read the Listings and they think their condition fits. A denial in their case does not mean that they are not right about it.  A denial means that “based on the evidence” the Analyst/Judge had at the time, the Analyst/Judge found that the evidence was insufficient and “did not meet our rules.”  That will suffice for now.

Step Four: Does the claimant have “the capacity” to perform their “past relevant work” for purposes of the Social Security Act?  The question of capacity requires medical evidence. What is the most the claimant could do the physical tasks (sit/stand/walk/push/pull/lift/carry and manipulate objects) and maintain pace required in the competitive labor market?  What percentage of an eight-hour workday?  Occasionally (up to 66%); Frequently; Constantly? A qualified health care provider can give an opinion. Someone like a Medical Examiner (a Social Security healthcare provider)  who only looks at your medical records doesn’t have much to go on.  I had an ME who was a pathologist. What did s/he really know about living patients? A Consultative Examiner sees you one time for 30 minutes to an hour.  I had one consultative examiner who always used a piece of paper to measure the circumference of legs and arms. She said to the clients, “Sorry, forgot my tape measure.  I’ll check it later.” (I had my clients bring their own tape measures.)  Your Treating Doctor (in a perfect world) has seen you many times; has listened to you and understands what you mean when you talk about your pain. I had a client who always said “fine” in answer to the question, “How are you.”  I had to ask why he went to the pain management doctor every month if he was always “fine.”  He explained he thought he was saying, “I’m fine,” to a greeting kind of question, “Hey, how’s it going?” He did not mean he was Fine. That particular doctor refused to provide a statement. We won anyway; but it would have been much easier and done more quickly (eight months instead of 30 months) if we’d had that statement.

Once SSA decides what capacity you have left, they turn to The Dictionary of Occupational Titles (DOT). In theory, the DOT has identified every type of possible job in the labor market. Everything from Addresser to Zipper Tester.  Unfortunately, the DOT hasn’t been updated since 1977 and there are jobs listed that don’t exist. See this https://www.washingtonpost.com/politics/2022/12/27/social-security-job-titles-disabled-applicants-obsolete/

The DOT identifies mental and physical work tasks (think, sit/stand/walk blah, blah, blah) in terms of Rarely, Occasionally, Frequently and Constantly.  The SSA Analyst or Judge applies the answers suggested in the medical records; and a “Vocational Expert” responds to hypothetical questions like:  Assume you have an individual of the claimant’s age, education and experience and assume further the individual cannot lift more than 10 pounds occasionally, cannot sit more than four hours; cannot stand more than four hours and can only do simple, routine tasks and cannot work at a production/assembly line pace. Can the claimant do their past work?

Past Work  does not mean your primary occupation or even the last job you did before you stopped working.  Past Work is any job you have done at an SGA level in the previous 15 years. A claimant who has driven a long-haul semi-truck for the past 14 years (a physically and mentally demanding job) worked as a call center operator job for 1 year (not physically demanding; about the same mental effort) can’t do the semi driver job anymore, but could do the call center operator job.  For that person, the Past Work is the call center operator and will not be considered disabled for purposes of the Social Security Act. In other words, they will look for the easiest job you’ve done on a continuous, full-time basis in the previous 15 years.  That person gets the denial letter:  Based on the evidence we have you can still do your past work.

 Step Five:  Is there “other work” the claimant has the capacity to perform for purposes of the Social Security Act?  The answer to this question depends on how old you are. Sad but true, people over 50 have a harder time getting a new job than those under age 50. The older one gets, the harder it is to compete for a job. So, at age 55, there are fewer “other jobs” than those for ages 50-54. People under age 50 have an even easier time. Take four workers in Social Security Land with the exact same mental and physical impairments, one age 48; one aged 50 one age 54; one age 55 you get a different answer. The 55-year-old worker will be disabled; whereas the 54-year-old worker will not. The 48-year-old-worker will not be disabled, but the 50-year-old will.

In Normal People Land, those results make no sense. None of the four could find a job. Normal people would think of them as disabled. On the Social Security Island, the results depend upon how closely the evidence matches the rules.