Grids and Residual Capacity

Sorry about the jargon but if you talk to Social Security folks, you must be able to translate. Earlier I talked about the "Listings" which are the third step in the five step evaluation. Now it's time to get to steps four and five where Social Security looks to the "Grids."

The grids are found in Appendix 2 to Subpart P of the regulations. If you click over, you will see columns and rows based on education, age, work experience and transferability of skills or ability to adapt to new jobs. It looks like a grid.

If you can fit in the proper grid, you can be found to be disabled. The Social Security disabilty workers will deny you if you don't fit but there's still room to argue - successfully argue - to a judge.

In front of a judge, you can prove up how a disability meets a listing or equals something in the grid. This is not as clean cut. And, you definitely need to know what you're doing when you get away from the straight listings or grids.

If you have a question about this, go to my website and ask me.

Filing and Appeals

The system is slow and overburdened. If you get annoyed, that's ok but don't get discouraged and don't give up.

The first step is done by phone and/or an office visit. A person starts the process by calling the 800 number in the local phone book. The Social Security workers will take you basic information, send you forms and set up a time for a phone or in-person interview. At this first stage, a lawyer cannot represent you, that is go in and talk for you, but the lawyer can help you all he can by telling you what to expect and what information Social Security will need. Social Security turns down more than 2/3 of the folks at this stage.

The next step in most states is reconsideration. Some states are experimenting with eliminating this stage. In Mississippi, one state where I practice, Social Security turns down, 93% of the folks who file for reconsideration. My other state, Alabama doesn't bother anymore, it goes straight on to appeal. On the reconsideration stage, you are allowed a lawyer.

After recondideration, you appeal to an Adminstrative Law Judge, ALJ. I would strongly encourage folks to get a lawyer for this. This is a place with a hearing, tesimony under oath and a need for very specific evidence. The judge is a lawyer. Get somebody who thinks like the judge, another lawyer, to talk to the judge for you. Most cases will end here win or lose for practical reasons but there are appeals from here.

The next step is the Appeals Council. This is one board for the whole country. Without anyone asking, they will check out a judge's favorable ruling, i.e., granting disability and occasionally return them to the judge for more work. The claimant can also ask them to reverse the judge on an unfavorable ruling. If it doesn't reverse, then the next appeal gets out of Social Security system entirely.

One takes the Appeals Council's decision to the Federal District Court in the claimant's home district. From there it is the Federal Circuit Court and from there, rarely, the United States Supreme Court.

Any questions? Go to my website and ask.

Pain in the Disability Decision

Each person experiences pain differently. Pain can be greater or less for each person...we think, but there is no real way to tell. Pain is something that is interpreted in each person's brain based on signals sent through the person's nervous system. But, we all know pain is very, very real and affects our ability to work or concentrate on a tasks at hand.

Social Security has got to take pain into account even if that is hard to do. The first to do is find out if there is some underlying condition to hang a hat on. In Social Security language: "Symptoms such as pain, fatigue, shortness of breath, weakness, or nervousness will not be found to affect an individual's ability to do basic work activity unless the individual first establishes by objective medical evidence ...that he or she has a medically determinable impairment(s) and that the imparment(s) could be reasonably expected to produce the symptoms." SSR 96-3p

Once a doctor diagnoses a problem with good clinical or objective evidence, then the judge looks at seven factors: 1) The individual's daily activities; 2) The location, duration, frequency and intensity of the individual's pain or other symptoms; 3) Factors that precipitate or aggravate the symptoms; 4) The type, dosage, effectiveness and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5) Treatment, other than medication, the individual receives or has received for the relief of pain or other symptoms; 6) Any measures other than the treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 or 20 minutes every hour, or sleeping on a board; and 7) Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms." SSR 96-7p

Lots of questions to answer on this one. For your questions, go to the website and hit contact me or use the question box.

Putting the disabilities together

In recent posts, I've told you about forgotten impairments such as depression and the Social Security Administration's 5 step evaluation process. (See, January 29, 2006 post) They tie together in proof.

Many people will not meet a single specific listed impairment. The requirements for one of those can be quite stringent. And, Social Security has different standards for folks 18-49, younger individuals, 50-54, approaching advanced age, and, 54 and older, advanced age. It's easier to prove diasability the older you get.

But, to get through the fourth and fifth steps on residual functional capacity and the grids, it often takes more than one problem which by themselves do not meet an impairment but do reduce mental and physical functional capacity. If you have enough of these that reduce the capacity to work, then together one can meet disability. For example, a physical problem alone may not produce disability as defined by a listed impairment but a physical problem plus proof of the depression that exists will support a disability finding many times.

So, one looks for everything and puts it all together in a case for the judge.

More info on the Social Security Disability process at my website.

Social Security's Steps to Decide Every Case

Social Security examiners have a five step process to decide each case. The judges and lawyers follow the same steps.

1) Is the claimant engaged in " substantial gainful activity?" This generally means is the claimant working but not always. Piddling jobs or jobs where somebody is letting a person work just to help them out may not be "substantial gainful aactivity." Many part time jobs where one cannot work more than part ime and make less than $850 per month are not substantial gainful activity. If a person is working and it's substantial, Social Security stops right here and rejects the claim. If a person is not doing substantial work, Social Security goes to the next step.

2) Is the claimant's condition or impairment severe? That is, does it significantly limit the claimant's physical or mental ability to do basic work activities? If the answer is no, Social Security stops here and rejects the claim. If the answer is yes, then Social Security goes to the next step.

3) Does the claimant's condition meet or equal one of the listed impairments and thereby precluding any gainful activity. (This list is about 150 pages long and found as an appendix to the regulations. Contact me through my main website and I will link you to the proper section.) If the claimant meets a listing, Social Security stops here and makes an award. If the claimant does not meet an impairment, then Social Security goes on to the next step.

4) The Social Security examiner determines if the condition is severe. The examiner looks at the "residual functional capacity." That is, does the condition prevent the claimant, despite the impairment, from going back to any past relevant work; generally work in the last 15 years. If a person can go back to past relevant work, Social Secuirty rejects the claim. If not, the examiner goes to the last step.

5) If the Claimant cannot do any past relevant work, then the examiner decides whether in light of residual functional capacity, age, education, and work experience, the claimant can perform any other work. This is broken down in a series of columns and called the grids.

Often missed impairment...depression

Nobody likes to talk about it and many are embarassed to admit to it, but depression is very real. In the majority of cases with long term chronic pain, depression results from the change in chemistry the body's own pain killer's can cause, the lack of sleep the pain causes and, the change in life-style due to restricted activities. I ask almost all my clients about depression.

I refer a lot out to counseling and treatment for their own benefit and to help the disability case - depression doesn't exist for Social Security unless there are treatment or evaluation notes. No paper, no depression. So depression treatment is also necessary for the case.

Here's what Social Security Disability requires:

Medically documented persistence; either continuous or intermittent, of the following:

1. Depressive syndrome characterized by at least four of the following:

a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Pyschomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt and worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking

AND

2. Resulting in two of the following:

a. Marked restrictions in daily activities; or
b. Marked difficulties in maintaining social functioning; or
c. Marked difiiculties in maintaining concentration, persistence or pace; or
d. Repeated epidsodes of decompensation, each of extended duration.

This comes straight from section 12 of the listed impairments Social Security uses to determine disability.

Almost anyone who has been out of work twelve months with a serious physical condition will move into depression. Both the physical condition and the depression need to be considered for Social Security. Often the depression is the more disabling condition. Many times neither the physical condition nor the depression alone are disabling under Social Security rules but combined together disability can be proven.

There's more information about the decision process at my website.

How much do I get?

For disability insurance, where you paid into the system through payroll deductions, your disability check will be equal to your check if you had retired at 62; less than full retirement but close.

For SSI, that's children and folks who have never worked or not worked enough, then it is a set amount per month as a maximum, around $600. This can be reduced by other income coming to you or your household. Assets also reduce this.

Social Security disability Insurance doesn't care about other income or assets. No effect on that.

More information on the differences at the website.