I was sitting in my office working late one night, as usual, when the telephone rang. I answered the phone and the person calling announced themselves, "Hello, I am Rich Smith, I need a lawyer to help me with my Social Security Disability claim," Mr. Smith proceeded to tell me that he has not worked in six months and believed that he would be off of work indefinitely. He stated that he applied for Social Security benefits, but they denied his claim. After speaking with Mr. Smith, I learned that he is a fifty-six year old man whose medical problems included depression, hypertension, obesity, congestive heart failure and Crones disease. He advised me that he could no longer perform his previous employment as a production supervisor for a large manufacturing company in the Midwest. Mr. Smith believed he could never work again, even in another field that would be less demanding. He stated his education level was that of the eleventh grade and he was not trained for any other type of work. He further stated that he did not believe he could endure the stresses of any type of employment even of a sedentary nature. Mr. Smith claimed to have pain on a daily basis and told me that he never knew when he would have an attack from his Crones disease. Moreover, he has been in and out of hospitals because of his heart problem. He further opined that his previous employer released him from his duties because they could no longer accommodate his conditions.
After speaking with Mr. Smith at length about his conditions, he asked me questions concerning whether or not I felt he had a viable case, and the proof necessary to prevail. Mr. Smith also wanted to know all of the steps involved in presenting a claim and the time frames involved. The following is an analysis of the Social Security Administration’s disability claim procedures that would apply to Mr. Smith’s claim.
What is Disability?
"Disability" is Defined as: "inability 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 continued period of 12 months." Title 42 U.S.C.A. Sec. 416 (I), 423 (d), and 20 CFR Sec. 404.1505 of the Social Security Act.
The Social Security Administration’s Considerations When Evaluating A Disability Claim
There are many factors involved when assessing a disability claim and in establishing that a claimant is disabled. Social Security considers a person’s age, education level, residual functional capacity, whether the person has done only arduous unskilled physical labor, a claimant’s past employment, skill requirements, and transferable skills. In order to prove an inability to perform work a person must be unable to perform substantial gainful activity, even at a sedentary level.
Determination of Disability- Substantial Gainful Activity,
Pursuant to 42 U.S.C.A. Sec. 416 (i)(1)(A), and 423 (d)(2)(A), "The term, "Substantial Gainful Activity" is used to describe a level of work activity that is both substantial and gainful. Substantial work activity involves the performance of significant physical or mental duties, or a combination of both, which are productive in nature. For work activity to be substantial, it need not necessarily be performed on a full-time basis. Work performed on a part-time basis may also be substantial. Closely related to the definition of "substantial gainful activity" is the rule that when a claimant is able to establish that he can no longer engage in his known occupations, then the Social Security Administration has the burden of establishing an alternative occupation he can engage in." The rule is stated thus:
"A claimant has adequately established a prima facie case of disability as defined in the Social Security Act when he (1) shows that his physical impairment prevents any further pursuit of his usual lifelong vocation, (2) shows that his advanced age and lack of education and other work experience are superimposed upon lack of employment, and (3) when there is no indication in the records of any other definite employment opportunity in the locale where the claimant is situated in which he could realistically engage. The Secretary then has the duty to produce some evidence of employment opportunities which are reasonably available to the claimant during the period involved." Paul v. Ribicoof, 206 F.Supp. 606 (D.Colo.1962).
Social Security closely examines a claimant’s Residual Functional Capacity (RFC) in determining an individual’s remaining capacity for work and whether a person may be able to perform other work despite his or her impairments. If a claimant has more than one impairment Social Security will consider all of the impairments of which they are made aware. They will take in to consideration a person’s ability to meet certain demands of jobs, whether physical or mental in nature, sensory requirements and other functions. RFC is an assessment made by the Administration based upon all of the evidence in the record, including a claimant’s statements, treating or examining physicians statements and observations, as well as family and friends’ observations of a claimant’s limitations.
Residual Functional Capacity. Reference should be made to 20 CFR 404.1545. A person’s Residual Functional Capacity (RFC) in general RFC can be defined as a claimant’s impairments and any related symptoms, such as pain, may cause physical and mental limitations that affect what a claimant can do in a work setting. Your residual functional capacity is what a claimant can still do despite his or her limitations.
Residual Functional Capacity and Vocational Consideration.
Social Security will consider a combination of a claimant’s Residual Functional Capacity and their vocational background. The following are the Social Security’s vocational considerations:
Age as a vocational factor. Pursuant to 20 CFR 404-1563 "Age" is referred to as an individual’s chronological age and the extent to which age affects the ability to adapt to a new work situation and to do work in competition with others. In general, people under the age of 50, are considered younger people and the Social Security Administration usually will not consider that their age will affect their ability to adapt to new work situations. A person approaching advanced age is considered someone between the ages of 50-54. The Social Security Administration will consider a claimant’s age, along with a severe impairment and limited work experience, as circumstances that could seriously affect a person’s ability to adjust to employment in the National Economy. However, age is only one factor which is considered by the Social Security Administration. When an individual is approaching advanced age, over 55 years old, the Social Security Administration will consider that advanced age is the point where a person’s age significantly affects their ability to adjust to a new work situation and perform substantial gainful activity.
Education As a Vocational Factor.
Pursuant to 20 CFR Sec.404.1564, The term education is primarily used to mean formal schooling or other training which contributes to a claimant’s ability to meet vocational requirements, such as: reasoning ability, arithmetical ability and communication skills. Education may not only be based on an individual’s formal schooling. The Social Security Administration will also consider past work experience, skills and intellectual abilities gained with work experience.
Work Experience as a Vocational Factor.
20 CFR Sec. 404-1565 "In general, the Administration refers to "Work Experience", as skills and abilities acquired through past work which in turn, reflects the type of work a claimant may be expected to perform. The Social Security Administration considers a claimant’s work experience significant when it was done within the last 15 years, lasted long enough for a claimant to learn it, and was substantial gainful activity.
Moreover, the Social Security Administration must determine whether or not a claimant’s skills are transferable. Pursuant to 20 CFR 404.1568, there are four basic categories used to evaluate a claimant’s skills:
Unskilled Work: Unskilled work is work which needs little or no judgement to perform simple duties that can be learned on the job in a short period of time. The job may or may not require considerable strength. A person does not gain work skills by performing unskilled jobs.
Semi-Skilled Work: Semi-skilled work is work which needs some skills but does not require performing the more complex work duties. Semi-skilled jobs may require alertness and close attention to detail, ie. watching machine processes; or inspecting, testing or otherwise looking for irregularities. A job may be classified as semi-skilled where coordination and dexterity are necessary.
Skilled Work: Skilled work is defined as work that requires qualifications in which a person uses judgement to determine the machine and manual operations to be performed in order to obtain the proper form quality or quantity of material to be produced. Skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity.
Skills That Can be Used in Other Work (Transferability): The Social Security Administration will consider a claimant to have skills that can be used in other jobs, when the skilled or semi-skilled work activities performed in past work can be used to meet the requirements of skilled or semi-skilled activities of other jobs or kinds of work.
The Social Security Administration will consider a claimant’s residual functional capacity, vocational factors and skills and the transferability of those skills when determining whether or not there is some other type of employment a claimant can perform. Furthermore, a claimant must have a medically determinable impairment and the medical evidence to support their claims. Pursuant to 20 CFR Sec. 404.1508, 404.1513, the Secretary of Health and Human Services has taken the position that a "Medically determinable physical or mental impairment" as the term is used in the various definitions of disability is one that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. A "medically determinable" impairment does not mean that the opinions or conclusions must be supported by objective clinical findings, since subjective ailments may be disabling. Huneycutt v. Gardner, 282 F.Supp.405 (M.D.N.C.1968). A United States Circuit Court of Appeals has held that a cancer patient who developed a severe psychiatric impairment and depression because of a cancer diagnosis was disabled in spite of the subjective diagnosis alone. Murphy v. Gardner, 379 F.2d 1(8th Cir. 1967).
In addition to evaluating all of the medical evidence made available to them, the Social Security Administration may require a claimant to attend consultive medical examinations. If the Administration believes that a claimant’s file is lacking evidence in a particular area or to clarify clinical findings, they will purchase an examination either from the claimant’s treating physician or an independent source to evaluate the claimant and their complaints. A claimant’s refusal to submit to a consultative examination constitutes a basis for denial of the claim.
The Four Step Administrative Appeal Procedures
When a claimant is denied Social Security Disability benefits on
their initial application for benefits they will receive written notification from the Administration. This notice will advise the claimant of the initial determination and their right to a reconsideration of the decision. The claimant must then advise the Administration in writing that they wish to appeal and request a reconsideration of the decision. An initial determination becomes final unless reconsideration is requested with sixty (60) days from the date of receipt of the notice of the determination. 20 CFR 404.909.
The reconsideration determination is the second step in the four step administrative procedure. At the Reconsideration level the Administration will review the initial determination and any other medical evidence that is submitted by the parties or otherwise obtained. A reconsidered determination becomes final unless a hearing is requested within sixty (60) days from the date of claimant’s receipt of notice of the reconsidered determination, or unless such determination is revised in accordance with 20 CFR Sec. 404.905, or unless the expedite appeals process is used in accordance with 20 CFR sec. 404.900 (a)(6)
Administrative Law Judge Decision.
Hearings before an Administrative Law Judge are statutory with the United States Constitution acting as an overall controlling factor. Hearings must comply with due process. A claimant is provided the opportunity for a full hearing during which he can present evidence and legal argument and cross examine witnesses. The hearing is tape recorded. The Rules of evidence are relaxed to allow, what would otherwise be considered hearsay evidence into the record.
Generally, the ALJ renders a decision stating his finding of fact and conclusions of law. The ALJ’s decision in the case must be based upon the evidence adduced at the hearing or included in the hearing record. The decision must be in writing and contain all of the findings of facts and statement of law.
If the claimant is dissatisfied with the decision of an administrative law judge, he must file a written appeal within sixty (60) days after his receipt of the ALJ decision to the Appeals Council for their review.
Appeals Council Review.
The Appeals Council essentially acts as the Appellate Court after an ALJ hearing. 20CFR Sec. 404.974, provides in substance that, whenever the Appeals Council reviews an ALJ’s decision, it may make available to a party upon request, copies or a statement of the contents of the documents or other written evidence upon which the ALJ’s decision was based. The claimant is given, upon request, a reasonable opportunity to file briefs or other written statements of allegations as to fact and law.
The Appeals Council will review the ALJ’s decision, and it may affirm, modify or reverse the decision of the ALJ, or they may vacate that decision and remand the case to an ALJ for rehearing, or to take further testimony in the case.
When the Appeals Council notifies the claimant of its decision, the claimant has sixty (60) days from receipt of the decision to seek review of the United States District Court by filing a civil action. If a civil action is filed, a United States District Court will review the decision and judgement of the ALJ and Appeals Council. Lastly, if the District Court’s Judgement is Appealed it is subject to review, modification and or reversal by the Federal Court of Appeals.
Attorney Representation Attorney Fees
When a favorable decision has been rendered on a claim, the representative is entitled to a legal fee. The Social Security Administration must approve the fee agreement between a claimant and their representative. Reference should be made to 42 U.S.C.A. Sec. 406 (a) and 20 CFR Sec. 404.1730. The law simply states that, in case there is an award of past-due benefits, the Social Security Administration shall certify an attorney fee, which is allowed the attorney representing the claimant. This fee is deducted from the past due benefits. Thus, in any case where the Administration makes a determination favorable to a claimant who was represented by an attorney in a proceeding before the Administration and, as a result of such determination, past due benefits are payable, the Administration will certify for direct payment to the attorney, out of such benefits, as. follows:
a) 25 percent of the total of such past-due benefits;
b) the amount of attorney’s fee set by the Administration; or
c) the amount agreed upon between the attorney and the claimant.
The Secretary is required by law, when claimants are represented by an attorney, to deduct and withhold from the claimant’s past-due benefits an amount not to exceed 25 % thereof. "Past- due" benefits include not only the amount due the claimant, but also any amounts due family members. In certain circumstances, an attorney will be required to file a fee petition, which is subject to the approval of an ALJ for payment of a legal fee.
Evaluation of Mr. Smith’s Disability Claim
Assuming that Mr. Smith has sufficient medical evidence to support his claims of disabling illness, and that he can no longer perform the duties of his past relevant employment, the burden shifts to the Social Security Administration to prove that other employment exists in the National Economy that Mr. Smith can perform. In light of the severe medical ailments affecting Mr. Smith and the fact that he is approaching advanced age, the Social Security Administration will have a difficult time proving that there is other work available for a person in Mr. Smith’s situation. There is also the question of whether or not Mr. Smith’s skills are transferable from his lifelong employment and certainly his remote education is not a favorable factor in proving that he could perform other substantial gainful activity, even at a sedentary level. Although Mr. Smith’s claim appears strong, in order for him to prevail it will be important that his medical records, including the opinions of his treating physicians support his claim.
Harold W. Conick is a Principal of Conick & Conick, Wheaton. His practice is concentrated in Social Security disability claims, civil litigation and transactions. He received his Undergraduate Degree from Loyola University and his Law Degree in 1980 from Northern Illinois University. He may be reached at email@example.com
The author thanks Tess O’Connor, a Paralegal at Conick & Conick for her assistance with this article.